§ THE EARL OF AIRLIE, in calling attention to the case of the (Cagliari, and asking some questions relating to the correspondence concerning it, said that in a recent speech of the noble Earl, the Secretary for Foreign Affairs', there were two statements, which he found great difficulty in reconciling with the papers which had been presented to Parliament. One of these statements was an expression of opinion on the part of the noble Earl; the other referred to a matter of fact. Alluding to the capture of the Cagliari, the noble Earl said that, under the circumstances it was impossible to take any strong measures, even if strong measures were advisable; he then went on to say, that the law officers of Her Majesty's Government had declared the condemnation and confiscation of the Cagliari to be illegal; and he added that he was not aware that any official communication of the condemnation of the Cagliari had yet been made to the Sardinian Government. Now, in the correspondence which had been presented to Parliament on this subject, there was a note from the Marquess D'Azeglio to his noble Friend who was then at the Foreign Office, accompanied by the decision of the Neapolitan tribunal. That decision decreed the condemnation of the vessel and all goods on board as contraband of war; such of the goods as were not contraband of war were ordered to be restored to the owner; and, as if to complete this mockery of justice, it was 1931 declared that the unfortunate owner's claim for compensation was on the pirates who had seized his vessel, and were afterwards executed. He hoped some noble Lord learned in the law would to-night favour the House with an opinion as to the validity of this decision. For his part he thought it was impossible to reconcile it with common justice; but then he remembered that this was a question of law not of justice. In so saying he was raising no objection to the constitution of the Neapolitan tribunal. He simply wished to state the fact that that which the law officers of the Crown had declared to be illegal had taken place; and, on the other hand, that the noble Earl had stated his opinion that there was no ground on which this Government could have recourse to strong measures against the Government of Naples. Now it seemed to him that as the law officers had unanimously declared the confiscation and condemnation of the Cagliari to be illegal, the Government of Sardinia had a perfect right to remonstrate against the confiscation and condemnation, and that if its remonstrances were not attended to, it had a right to enforce them; and that Her Majesty's Government had a right to support our ally in her demands. Of course he spoke only with regard to the question of legality, and not at all as to the question of policy. There was also an ambiguity in the terms in which the opinion of the law officers was couched in reference to the condemnation of the Cagliari. It did not appear from what they said, whether they considered that the Cagliari was not within the jurisdiction of the Neapolitan tribunal, or whether the decision given by that tribunal was wrong, but he (the Earl of Airlie) must protest against the monstrous doctrine which had been laid down by a certain school of lawyers, that, however unjust the condemnation of the vessel might be, however corrupt the tribunal, however subject to undue influence or the power of the Crown, Sardinian subjects were bound to abide by the decision of the Neapolitan court of law, and had no right to apply to their own Government for redress, and that the Sardinian Government had no right to demand that redress. All the lawyers in England could not persuade him to assent to such a doctrine, nor did he think that all the lawyers in England would persuade Parliament to assent to it either. If the Sardinian subjects had no right to appeal to their own Government, 1932 what right had the British Government to demand compensation for the detention of the Engineers—for the two questions could not be separated? As regarded the abstract right of persons to appeal to their own Government for redress for wrongs inflicted on them by a foreign tribunal the principle had been affirmed in both Houses of Parliament. He remembered that in the year 1850, a Resolution was moved in the other House of Parliament approving of the foreign policy of the Government of that day. It was contended by those who disapproved of Viscount Palmerston's policy, that he had overstepped the limits of international law by affording to British subjects resident in Greece that protection which they had not been able to obtain from the regular tribunals of the country, and that, however unjust were the decisions of those tribunals, from their decision there was no appeal. After a four nights' debate, the House of Commons refused to recognise such flimsy legal sophistries, and declared that the noble Lord was justified in obtaining cither by negotiation or force that justice which the native tribunals had not granted. He might be told that their Lordships had come to an opposite conclusion upon this point; but he held that it was not upon this point at all. The noble Earl now at the head of the Government did indeed move and carry a Resolution, part of which implied "that British subjects were amenable to the decisions of the tribunals of the countries in which they resided; but in the speech with which he prefaced his Resolution he distinctly excepted countries which were subject to despotic Governments, where the tribunals were notoriously and corruptly under the influence of the Crown. Thus, he might say that one House of Parliament by direct Resolution, and the other by implication, had affirmed the principle that foreigners resident in countries where the tribunals were notoriously corrupt and under the influence of the Crown were entitled to appeal from the decisions of those tribunals to their own Governments. He had refrained from touching upon the legality of the "capture" of the Cagliari, for that was a question in respect of which a difference of opinion existed amongst the highest authorities in the law. He did not mean to say that it was the business of Parliament to dictate the policy of Government, although he might say that Government had of late shown themselves very amenable to dicta- 1933 tion; but when important statements as regarded foreign policy wore made in either House of Parliament they had a right to demand explanation. In the other House of Parliament, on the 17th of April, the Chancellor of the Exchequer made a similar statement to that of the noble Earl the Secretary for Foreign Affairs, but he added that the international part of the question was quite distinct from any other question raised by the capture, and that this country was "only interested as all the great maritime powers were." He (the Earl of Airlie) protested against the tendency of such a doctrine as that. He should have thought that there existed between this country and Sardinia a strong bond of natural sympathy, in consequence of the similarity of the institutions of the two countries;—he should have thought that Sardinia was entitled to some regard as the firm and steadfast ally of this country. Let him be clearly understood. Not for one moment would he have it supposed that he wished the Government to allow the sympathy and the regard which they might feel for Sardinia, so to affect their judgment as to influence the decision which they might come to on the legality of the seizure and condemnation of the Cagliari; but if once that seizure or condemnation were shown to be illegal, and consequently the claim of Sardinia for the restoration of the vessel were shown to be just, he did say that this country would stand towards Sardinia in a position very different from that of other maritime powers, many of whom had not cultivated such intimate relations with Sardinia as ourselves. But Sardinia had a still stronger claim upon us than any which might arise out of the sympathy which we might feel for a country enjoying similar institutions with ourselves, or out of the regard which we might entertain for a faithful ally. It was impossible to read the despatch of his noble Friend (the Earl of Clarendon), dated 29th December, 1857, without seeing that he (the Earl of Clarendon) was of opinion that the seizure and detention of the Cagliari were illegal, and that he was anxious that Count Cavour should object to the course which had been taken by the Neapolitan Government; and, although the draft presented to Count Cavour was couched in somewhat stronger terms than the despatch itself, still even the original despatch, if he had seen it, must have left upon Count Cavour's mind the impression that the Earl of Clarendon was of opinion 1934 that the course taken by the Government of Naples was unjustifiable, that he was anxious that Count Cavour should object to that course, and that the English Cabinet was prepared to support the claims of Sardinia so far as they might be grounded in justice. He (the Earl of Airlie) said, therefore, that the Government were bound to act in the spirit of the despatch of the 29th of December; that inasmuch as they had, by their representations, induced Count Cavour to take a certain course and to make certain demands, they could not in honour abandon him now; but that they had no alternative but to support the claims of Sardinia, so far as those claims were reasonable and just. It appeared, however, that the Chancellor of the Exchequer wished us to divest ourselves of all consideration of kindly feeling towards our ally, to throw to the winds the expectations which we had raised in the mind of the Sardinian Government during the last three months; and to content ourselves with occupying the same position as "other maritime nations." He was far from saying that England was not interested in this question as a maritime power. On the contrary, we might well feel a deeper interest even than other powers in the strict observance of international law, because for the sake of improving that law we had made concessions which no other country could have made. There was a time when England was looked upon as not only the mistress but the tyrant of the seas, on account of the rigorous mode in which she exercised her belligerent rights; but at the Congress of Paris—acting in the interests of humanity and of civilization—she voluntarily abandoned those belligerent rights; and would she now, in the face of this act, allow the King of Naples to violate the conditions even of the old maritime code? He hoped the noble Earl had written an answer to the Marquess d'Azeglio's note, and that he had no objection to produce it. The noble Earl concluded by asking the Secretary of State for Foreign Affairs whether the opinion of the Law Officers of the Crown had been taken by Her Majesty's Government on a document, dated Naples, Nov. 28, 1857, and entitled the "Decision of the Commission of Prizes and Wrecks" in the case of the Sardinian steamer Cagliari; and, if so, whether Her Majesty's Government would lay a copy of such opinion on the table of the House; and also, whether any Answer had yet been returned by Her Ma- 1935 jesty's Government to a Note addressed by the Marquess d'Azeglio to the Earl of Malmesbury, dated March 28, 1858, and enclosing a communication from Count Cavour to Count Gropello, dated March 18, 1858?
§ THE EARL OF MALMESBURYMy Lords, I do not quite clearly understand what is the information which the noble Earl wishes to obtain from me. He has occupied the time of your Lordships for five and twenty minutes upon various subjects, some of them having reference to "another place," which, generally speaking, we are not allowed to mention here. I shall not follow him through all those subjects. As far as I can understand the noble Earl, however, he appears to imply by his first question that I was incorrect the other night when I stated my belief that the condemnation or confiscation of the Cagliari had not been officially reported to the Sardinian Government. I cannot positively say that that is the case; but I still am of opinion that that condemnation has not been officially reported; and for this reason, that it as yet has not been legally effected. I received this morning a despatch from Mr. Lyons at Naples, in which he states that, according to the Neapolitan law, there are three degrees of jurisdiction in prize cases. The first is that by which the Cagliari was condemned; the second is that by which the owners of the Cagliari have now appealed; and then, if the verdict of the first Court be confirmed by the second, there is still a third appeal to the King. So far as that point is concerned, therefore, I was perfectly correct; and I have been fortified in the opinion expressed by the Sardinian Minister at this Court. The second question which the noble Earl asks is whether I have answered the Marquess d'Azeglio's note of the 22nd of March last. That note has been answered; and, as no doubt it will interest your Lordships to be informed in what way Her Majesty's Government have answered it, perhaps you will allow me to go back a little and to refer to the events which preceded our reply. The note of the 22nd of March from the Marquess d'Azeglio to Her Majesty's Government began by stating that on the 5th of January last Sir James Hudson, Envoy Extraordinary and Minister Plenipotentiary of Her Britannic Majesty at Turin, informed Count Cavour, the President of the Council, that his Government was disposed to object to the proceedings of the Neapolitan Government in the affair 1936 of the Cagliari, because the vessels of war of the navy of the Two Sicilies bad no right to pursue and capture her beyond the limits of the territorial jurisdiction of the kingdom of Naples. The Marquess d'Azeglio added, that this principle being thus laid down, Sir James Hudson requested the Government of the King to inform him whether it took the same view of the capture of the Cagliari. The Marquis then proceeded to say that he was "formally charged to request the concurrence, and, if need be, the co-operation, of the British Government to bring this important affair to a successful termination." The only answer that I could return to that was the one I did, and, writing on the following day—the 23rd of March— to the Marquess d'Azeglio, I said:—
The undersigned has the honour to acquaint the Marquess d'Azeglio that his note will be duly considered by her Majesty's Government; but pending the answer which it will be the duty of the undersigned eventually to return to it, he thinks it right at once to state to the Marquess d'Azeglio that Her Majesty's Government had no cognizance of the note addressed by Her Majesty's Minister at Turin to the Count Cavour on the 5th of January, no copy of it having been received in this Office until it was communicated to the undersigned by the Marquess d'Azeglio on the 10th inst.Your Lordships are aware that there was an error committed by the Secretary of Legation at Turin—an error which may be best described in this way—that whereas he was directed by the late Foreign Secretary to ask a question, he made a promise instead. I cannot help regretting even now, as I did at the time, that that answer having been given to the Marquess d'Azeglio only three weeks after we came into office —Her Majesty's Government being well disposed towards Sardinia, having all the sympathies which Englishmen naturally feel for that bravo country, which has escaped so many dangers by the great judgment and courage of its present Minister, and whose soldiers were brothers in arms of our soldiers so recently—I cannot but regret, I say, having these feelings strongly within my own breast, that I should so soon have received the answer which I did from the Marquess d'Azeglio. I think, if he had considered the position of the Government—if he had given himself time to reflect upon it, and to have referred to his own Court, he would have avoided the inference which he drew, and which, I must say, was a rather painful one, that we were about to "abandon" Sardinia. My Lords, that was very far from 1937 our wish Indeed; but, as the word "abandon" has boon used, let us consider for a moment what it means. To abandon means to forsake some one whom you are bound to protect, either by some natural law or by some recent and specific promise. But, my Lords, I have looked back through the eight months over which this controversy has extended, under my noble Friend opposite (the Earl of Clarendon), and I must say that nowhere do I find anything like a promise given that the English Government will co-operate with Sardinia in the affairs between that Government and the Government of Naples; and, if we look at this question in a selfish view, I must point out that our connection with the matter at first was extremely slight. The only connection that England had with the seizure of the Cagliari Sardinian ship arose from the accidental presence of two English engineers on board of her, who had been imprisoned and had suffered in common with the rest of the unhappy crew of that vessel. I do not say this in order to flinch from that support which we are ready to give to Sardinia in seeking the recovery of that ship, but to show that the word "abandon" is not quite the fair word to apply to Her Majesty's Government, whatever the policy they may determine to pursue may be. My Lords, I need hardly say that in my opinion the Sardinian Government ought not to take advantage of the unfortunate error which was committed by Mr. Erskine when he unintentionally falsified the despatch which he was ordered to write; because it is clear, if you lay down that a Government may take advantage of errors such as that, that a country may be involved either in a disgraceful peace or in an unjustifiable war, through the technical error of a subordinate. I do not say that the Sardinian Government have taken advantage of this circumstance; but I allude to it because I have constantly soon it stated in certain papers that the error of Mr. Erskine actually bound the English Government to whatever he had written. Now, my Lords, if your Lordships will bear with me for a few moments, I wish to recall to your recollection what the position of the Government was with respect to this question when we entered office. We found a great variety and difference of opinions from the law officers of the Crown on various points. In fact, the law officers had at that moment no clear view of the case, and there were no salient points on which the Go- 1938 vernment could act. I thought, therefore, that it. was my duty to ascertain if there were any points on which the new law officers of the Crown could agree, and on which the Government could found a definite course of action. Before deciding upon that, however, it appeared to me that there was a peculiarly English question which required my immediate attention, and that was the liberation of the two English engineers. When we came into office, they had been in a horrible prison for eight months—one had lost his reason, and the health of the other was seriously impaired. I therefore felt that the first paramount practical duty of the Government was to obtain the freedom of those men; and accordingly we, without delay, sent Mr. Lyons to Naples with instructions to endeavour to persuade the Neapolitan Government to assent to their liberation. That was happily accomplished by the energy and ability of Mr. Lyons; and it is fair to say that the Neapolitan Government made very little difficulty in the matter. This only proves to me how unfortunate it was that, at the time when the capture took place, our relations with Naples had been broken off; because I am persuaded that, if we had had regular diplomatic relations with Naples at that time, the confinement of those men would have been restricted probably to a very brief period. On consulting the law officers of the Crown I had the satisfaction to find that they were agreed upon two points—first, that Park and Watt were illegally detained; that after the prima facie evidence against them they ought to have been released; and that we had a right, therefore, to ask for compensation for their illegal detention. we have, as your Lordships know, asked for that compensation; but up to this time we have received no answer from the Neapolitan Government to our application. On the second point, as to whether the Cagliari was legally captured or arrested or not, the law officers differ in opinion whether she was legally arrested, but are unanimous that it would be illegal to condemn her. I had the advantage at last, therefore, of finding the law officers unanimous upon two points, and the Government were accordingly enabled to act upon them. I have told your Lordships how we acted in respect of the two English prisoners. With regard to the other question, I had already ascertained that the feeling of Sardinia was so strong with respect to it, that it was not at all impossible that she might 1939 have recourse to the ultima ratio of going to war with Naples, rather than wait the result of any further steps which diplomacy might suggest. I need not say how anxious Her Majesty's Government were to prevent that step; because I am sure, interested as your Lordships must be in this question, you cannot fail to recognize the dangerous consequences which might result if those two Italian States wore to come to a rupture. These two States represent the two extremes of Italian policy. If a war were to arise between them, there is little doubt that it would soon become a European war, the extent of which as to territory or time it is impossible to speculate upon. If Sardinia and Naples were to go to war, it is impossible to suppose that Austria would long remain quiet; and, if Austria were to move, I leave your Lordships to say how long France was likely to look on with her arms folded. I go further than that in my apprehension. Anxious as I am that Sardinia should remain the model of a constitutional Government in Europe, I say that the greatest misfortune that could happen not to Sardinia only, but to Europe, would be a war thus begun, because I believe it will be found that constitutional liberty is almost invariably the child of peace and reason, and is seldom established by the sword. Strongly imbued with these feelings and this apprehension, I wrote to the Sardinian Government in answer to the note of the 22nd of March, saying that Her Majesty's Government entirely accepted the description given of the question by Count Cavour himself to Sir James Hudson, in reply to the despatch of my noble Friend opposite of the 29th of December. Count Cavour says:—This is a legal question, and I have wished to treat it legally and on its own merits. I have been blamed for coldness and for not treating it politically rather than internationally.Sir James Hudson, in reply to this, on behalf of my noble Friend, stated, that in his opinion also it was a purely legal question. In these very words of Count Cavour I might answer the noble Earl opposite, who has charged the Government with lukewarmness, in not going to war with Naples. [The Earl of AIRLIE: I made no such charge.] I stated to the Sardinian Government that our law officers, having determined that the capture of the Cagliari was legal, but that her condemnation was illegal, it is evident to us that the King of Naples was right in the be- 1940 ginning and the Sardinian Government wrong, and that at this moment the Sardinian Government was right and the King of Naples was wrong. We therefore offered to Sardinia our good offices for the purpose of persuading the King of Naples to abandon the condemnation of the Cagliari, and to restore her and her crew to Sardinia. At the same time I stated to Count Cavour that we thought it would be the most unhappy disaster if Sardinia should resort to hostilities with Naples before taking every step which diplomacy could suggest to avoid such an unfortunate result. The step which I advised him to take was one springing out of a proposition of my noble Friend opposite at the Conference of Paris, for which, I think, all civilized nations have reason to thank my noble Friend that he obtained the concurrence of the representatives of several of the first States of Europe. In the protocol of the 14th of April, 1856, of the Conference of Paris, there is the following passage:—The Earl of Clarendon having demanded permission to lay before the Congress a proposition which it appears to him ought to be favourably received, states that the calamities of war are still too present to every mind not to make it desirable to seek out every expedient calculated to prevent their return; that a stipulation had been inserted in Article VII. of the Treaty of Peace, recommending that in case of difference between the Porte and one or more of the other signing Powers recourse should be had to the mediation of a friendly State before resorting to force. The first Plenipotentiary of Great Britain conceives that this happy innovation might receive a more general application, and thus become a barrier against conflicts which frequently only break forth because it is not always possible to enter into explanation and to come to an understanding. He proposes, therefore, to agree upon a resolution calculated to afford to the maintenance of peace that chance of duration hereafter, without prejudice, however, to the independence of Governments.When my noble Friend had made that suggestion one Member of the Conference rises after another, and agrees to the principle of it, Count Cavour among the rest:Whereupon the Plenipotentiaries do not hesitate to express, in the name of their Governments, the wish that States between which any serious misunderstanding may arise should, before appealing to arms, have recourse, as far as circumstances might allow, to the good offices of a friendly Power.My Lords, I think the cause of civilization received a vast service from the principle here laid down by my noble Friend. I therefore referred Count Cavour to this protocol, and I advised him, in case of the continued refusal of Naples to agree to 1941 give up the Cagliari, notwithstanding our joint efforts, to have recourse to some friendly Power to obtain an arrangement of the matter without recourse to hostilities. I have as yet received no answer to that despatch; but, I may say, that I believe the other great Powers of Europe view the matter in the same light as Her Majesty's Government, and that they will use their efforts to persuade both parties to have recourse to the means which are recommended in the protocol of the Conference of Paris which I have just read. That, my Lords, is the case as it at present stands. I do not know whether the noble Earl opposite meant his speech as an attack on Her Majesty's Government, or on me personally; but I think you will be satisfied that I have done my duty in using my best efforts for the maintenance of that peace which is so invaluable to Europe.
§ THE EARL OF CLARENDONMy Lords, I think Her Majesty's Government have shown a sound discretion in the course which they have pursued in this matter. As I understand from my noble Friend, they have recommended the Neapolitan Government to restore the Cagliari and her crew to Sardinia; and, in the event of a continued refusal on the part of the Neapolitan Government, they have recommended the Sardinian Government to resort to that principle to which Count Cavour, along with the other Plenipotentiaries, assented in the Conferences of Paris. It is important that a maritime Power like England should not allow any act of illegality on the high seas, respecting which we arc entitled to interfere, to pass unnoticed, or unavenged if necessary; but it is still more important to be quite clear that we are right, and not to put forward any claim which we should not be justified by the law of nations in enforcing. There appears to have existed, from the very first, a great doubt as to the legality or the illegality of the capture of the Cagliari. Indeed, it is not only on this point; but, as your Lordships will have seen from the papers, on every point throughout this question, that the action of the Government has been hampered by legal doubts which it was impossible to disregard. High authorities have been of opinion that the Neapolitan Government was justified in seizing and detaining the Cagliari; and high authorities, on the other hand, have held that the Neapolitan Government was not justified. There is also an impor- 1942 tant question as to whether the Cagliari was voluntarily surrendered, but that may be at once dismissed; the only question we have to deal with is, whether she was legally seized. The captain of the Cagliari ay have announced to his crew and the passengers that he intended to carry the vessel to Naples, and there to give an account of all that had passed; but the commander of the Neapolitan cruiser could know nothing about that. He had orders to seize the Cagliari—he discovered her at sea, twelve miles from land, he fired a shot at her to bring her to, signaled for her master to come on board, sent an officer to take charge of her, and carried her into port. It would be perfectly absurd, therefore, to say that the Cagliari was voluntarily surrendered; she had no means of resisting, and she would have been sunk if she had resisted. The question is, therefore, was the seizure legal? That question was first raised by ourselves. We heard that it had been stated by some of the liberated portion of the crew that the Cagliari had been seized several miles beyond the Neapolitan waters; we referred to them, we ascertained that such was the fact, and we then took the opinion of the law officers of the Crown whether the Neapolitan Government was justified in pursuing and detaining a Sardinian vessel beyond the territorial jurisdiction of Naples, and whether, if the Cagliari had been an English vessel, Her Majesty's Government could have demanded her release. Feeling, at the same time, that as the vessel was Sardinian, was owned by a Sardinian, and was sailing under the Sardinian flag, we should have no right to make any demand on account of her unless the Sardinian Government interfered, we instructed Sir James Hudson to put to the Sardinian Government the same question which we had addressed to the law officers. We asked what were the views of the Sardinian Government on the matter, and whether they intended to object to the proceeding of the Neapolitan Government, on the ground of the vessel being seized beyond the territorial jurisdiction of Naples. At the same time I expressed on our part an opinion, certainly in strong terms; but we purposely avoided any suggestion that this opinion should be acted upon, nor did we offer any advice on the subject, for this simple reason, that we had not then received the opinions of the law officers. The propriety of our course was made clear three or four days afterwards; for when we did receive the opinion 1943 of the law officers it was to the effect, that under the particular circumstances of the case the Neapolitan Government wore justified in following the Cagliari and seizing her, and that Her Majesty's Government, mutatis mutandis, would not be justified in taking any objection to that proceeding. The communication to Sir James Hudson was not precisely of the nature my noble Friend behind me (the Earl of Airlie) has stated. It was not in support of any claim the Sardinian Government had brought against the Neapolitan Government, because they had not brought any claim at all. As regards the other circumstances connected with this despatch, I do not think that the alteration of the despatch bears out what my noble Friend (the Earl of Malmesbury) has said as to its having become a promise. It was, no doubt, very improper to alter the despatch; but Sir James Hudson was not exactly aware of the reason why the matter was put in interrogatory. The object of the despatch was simply to ask what view the Sardinian Government took of the matter; for, as we had not then received the opinion of the law officers of the Crown, we were not in a position to recommend a course. But, although it was very improper to alter the despatch, Sir James Hudson found in the despatch a strong expression of opinion, and did not know how far the Government intended to act on it, and therefore I do not think so much blame is attributable to him as has been attached to him. However, having received the opinion of the law officers of the Crown, it was impossible for us to insist on our objection to the capture of the Cagliari. I still think, however, that, in conformity with international law, a ship of war has no right to interfere with a foreign merchantman on the high seas. She may demand the merchantman's papers to ascertain her nationality, but that being once ascertained, she has no further right to interfere with a foreign merchantman unless at the time in commission of an act of piracy. No such act was attributed to the Cagliari at the time and place where she was seized, but the law officers said, that under the particular circumstances of the case, the Neapolitan Government were justified in pursuing and capturing her. I suppose, therefore, that particular circumstances may perhaps justify an exception to that which ordinarily must be held to be the rule of international law, and that without these circumstances it would be impossible to contend 1944 that the seizure would not have been a violation of international law. It is impossible to deny that the Cagliari had been employed in a very nefarious proceeding. A number of persons, who got on board as passengers, having taken possession of the vessel, landed a body of men at Ponza, overpowered the garrison, killed and wounded several persons, and released the prisoners who were confined in the castle. The Cagliari took the latter on board, and proceeded to the Gulf of Policastro, and at Sapri a great number disembarked, and endeavoured to raise an insurrection against the Government of the country. The officer in command of the Neapolitan steamer was no doubt aware of these circumstances, and did not know under what circumstances a number of passengers had overpowered the crew. These particular circumstances might justify, in the opinion of the law officers, the Neapolitan vessels in pursuing and seizing the Cagliari. I think that under similar circumstances we should have done the same thing. I think, mutatis mutandis, that we should not have hesitated to pursue and detain any vessel, under whatever flag sailing, that had landed on our shores men who committed acts of outrage and violence. I think that had the captain of a British frigate captured a vessel which had been so used for insurrectionary purposes against our Government, an immediate inquiry would have been ordered; but I do not think that, having ascertained all the facts of the case, the Court of Admiralty would or could have condemned the vessel. The Neapolitan frigate which seized the Cagliari, brought her into port. There was ample evidence that she was a regular and well-known trader, that her papers were all in order, and that a largo number of her passengers had embarked for Tunis. There was evidence, also, that the crew had been overpowered and compelled to work the vessel under the orders of the parties who were guilty of these insurrectionary proceedings; and they had evidence that after those parties left the vessel at Salerno the captain communicated to the crew that he would proceed to Naples to inform the Neapolitan Government as to everything that had taken place. Yet notwithstanding all these facts, all this evidence—with the manifest circumstance that the diversion of the vessel from her original course, and her subsequent capture, must have been an enormous loss to her owners—the Neapolitan court, 1945 without, I must say (having regard to the commonest principles of justice, and the rules of international law) the shadow of a pretext, held that the vessel was a lawful prize. I share, my Lords, in the satisfaction expressed by my noble Friend (the Earl of Malmesbury) that there is no difference of opinion amongst the law officers of the Crown on the subject of the condemnation of the vessel being illegal. I also heard with pleasure that my noble Friend bad asked for an indemnity for the two Englishmen, and that he does so on the recommendation of the law officers of the Crown. I am glad of it, because I stated here in December last that it would turn out that the accusations against Watt and Park were frivolous to the last degree. The first charge against them was, that they had not been provided with passports. The law officers say in their last opinion that it is not unusual for engineers not to be provided with passports; but, my Lords, it is not only not usual, but the general and uniform practice of engineers employed by foreign steam-boat companies is not to have passports; because if they have their names on the muster-roll, that is considered a sufficient certificate of their nationality and business, and Watt and Park had their names on the ship's muster-roll. The next charge is, that they were in possession of a letter from Miss White. This would constitute no ground of accusation; but it was not a letter; it was a paper not addressed to any particular person, but was a direction written in English for the information and guidance of the engineers of the Cagliari, who were, of course, English. The third accusation is that the engineers did not convey the ship to Tunis. Such ignorance is hardly credible, but it appears by an interrogatory to which Watt was subjected, that he was asked if he could bring evidence in support of his allegation that the Cagliari was not steered by the engineer. The fourth charge was that these two engineers had committed certain acts on land, whereas it was proved that neither of them had been on land at all. I hope your Lordships will bear in mind that her Majesty's late Government were altogether ignorant of the circumstances under which those two men were dealt with. We knew nothing of what had taken place on board the Cagliari; we knew nothing of the circumstances under which the parties were set on shore at Salerno. The Neapolitan Government had possession of the vessel, the passengers, 1946 and the crew, and the greatest secrecy was maintained; we were not able to obtain any information on the subject. No one can lament more than I do the sufferings which our poor countrymen were exposed to. Certainly, had we known the facts, nothing-would have induced us to tolerate their maltreatment. It was stated that six months ago they had not the protection of the British Government; but we had no means of knowing to what extent that protection was required. We had no information to show us that the Cagliari bad not left the port of Genoa with the full knowledge of all on board as to how she was to be employed. The fact of this vessel leaving Genoa at the time Mazzini attempted to gain possession of that city, and other circumstances, created suspicion in the mind of the Sardinian Government, who sent a ship of war to bring the vessel back; we had nothing to prove that these engineers did not land at Sapri to take part in the insurrection; although we had great doubts as to the probability of the offences charged against those men having been committed, we could not assert their innocence; all we could do was, to secure for them, as far as possible, a speedy and fair trial, and that in the meanwhile they should be well treated. We instructed the consul to visit them; but it appeared that it was contrary to the Neapolitan law, for prisoners to be allowed to see the persons engaged in conducting their defence, and the British consul was regarded in the light of a law adviser, because it would have bee competent for him to communicate with the advocate of the prisons. However, as it turned out that these men ought never to have been detained for a single moment, they were clearly entitled to indemnity. I go farther than the law officers, and say that we are entitled not only to demand an indemnity for these men on account of their cruel, unjust, and illegal detention, but also by reason of the deception practised on us by the Neapolitan Government; because, though the English consul was not allowed to sec them, he was informed that the Sardinian Government furnished them with money, that the English residents at Naples had subscribed to supply them with clothes, and that they were so well treated that there was nothing to be desired on that ground. On the 5th of August, Signor Carafa officially informed us that, owing to special instruction which had been issued, Park and Watt were perfectly well treated and had nothing to desire. The Neapolitan Government thus assumed 1947 a responsibility to the English Government for the treatment of these men; and although we had no high idea of the state of Neapolitan prisons, or of the manner in which persons confined in them were treated by the Government, we could not suppose that the Secretary of State for Foreign Affairs in Naples would give us a solemn assurance that Park and Watt, in consequence of special instructions, were perfectly well treated and had nothing to desire at the very moment when they were suffering all the horrors and misery which we now know of, and which so clearly entitle them to indemnity. In September we requested that Park and Watt should be released, still not knowing the sufferings to which they were exposed, but being convinced of their innocence, having got from their employers in Genoa the best character of them, and having also heard of their illness. Signor Carafa again gave us an official assurance that the men were both in perfect health, and at the same time repeated the reasons why the Consul could not be allowed to see them. Great stress has been laid in the newspapers upon the fact that on the 8th of October the Consul informed us that our demands would never meet with compliance unless they were accompanied by a strong remonstrance. The truth is, that I anticipated the Consul upon that point, for on the very day on which he wrote to me— namely, October 8th, that a strong remonstrance was necessary, I sent a despatch to Naples expressing the hope that a voluntary compliance with our demands would save Her Majesty's Government from the necessity of repeating them in a different manner and through a different organ. On the 23rd of the same month, Signor Carafa repeated all his reasons for not admitting the Consul until the act of accusation was completed; but that our despatch of the 8th had produced its effect was apparent, from the fact, that three days afterwards the Attorney General announced at Salerno that Park and Watt might see their friends and relations. It was not till November that we knew from the liberated prisoners that the crew had acted under compulsion, and it was not till the 5th of December that we had any idea of the treatment to which these men had been exposed, because even in November we received a letter from Mr. Pugh, the English clergyman at Naples, stating that the two engineers were confined in an airy room, and had distinctly told him that upon the whole they were well treated, and had nothing to complain 1948 of except being carried handcuffed through the streets, and not having received letters from England. I say, then, that as we have since ascertained how entirely erroneous these statements were, and how deliberately we were deceived—I can use no other word —by the Neapolitan Government, we are entitled upon that ground alone to demand indemnity. I was always of opinion, my Lords, that Park and Watts ought not to be detained; that there was not an atom of evidence against them; that the time would come when we should be able to ask for compensation for their sufferings; but as long as they were in the hands of the Neapolitan Government it would have been manifestly imprudent to excite irritation against them by announcing our intention to seek indemnity. We are now, however, at liberty to do so, and I rejoice to hear from my noble Friend opposite that we arc not only to demand compensation for them, but to support the Sardinian Government in their claims for restitution and indemnity, because those claims are founded upon the same ground as our own, namely, the illegality of the proceedings of the Neapolitan Government.
§ LORD WENSLEYDALEthought it was of the utmost importance to consider deliberately what course they should adopt. He would not enter into any detailed argument on the main question, upon which there was a great diversity of opinion in both Houses of Parliament, and between the law officers of the Crown of the past and present Government; but all, he believed, except the present and perhaps the late Attorney General, were agreed that there was a right on the part of the Neapolitan Government to pursue and seize the vessel. He could conceive an analogous case; he would suppose that a number of American filibusters should purchase and fit out an American vessel, land on the coast of Jamaica, rob and pillage the country, and attack the Queen's troops, and then re-embark and sail away, and that an English frigate should pursue and capture the vessel, beyond the maritime league from the shore on the ground that she had been engaged in the outrageous acts. It could not be a question that Her Majesty's frigate had authority to pursue and capture such a vessel. The crew of the vessel, though lawfully under the American flag, would in the supposed case have, he thought, been unquestionably guilty of piracy, and the vessel was without doubt seizable by the law of nations on the high 1949 seas. If the American vessel had been previously seized and taken from the real owners by pirates and used for piratical purposes by them, it seemed to him to make no difference as to the right of seizure. He was, therefore, strongly inclined to concur in the opinion of the present Solicitor General that it was a lawful act, on the part of the Neapolitan frigate, to seize the Cagliari, and carry her into Naples for examination. Then it became a question as to whether the Neapolitan Government had a right to adjudicate on the question of piracy and condemn the ship on that account, and also to punish the crew. The Queen's Advocate and the present Solicitor General give as their opinion that the condemnation was unwarranted; but whether it was so simply wrong as to be only reversible on appeal, or so clearly against a 1 principles of justice, in re minimé dubia, as to be void by international law, they leave undecided. As there was this conflict of opinion among the law advisers of the Crown, both under the late and the present Government, he would repeat his suggestion that it would be wise in Her Majesty's Government to take the best possible opinion, that of the Judicial Committee of the Privy Council, who, by an Act of Parliament, had power to consider these questions, and to report its opinion to Her Majesty thereon? The noble and learned Lord went on to show that this power thus delegated to the Committee of the Privy Council had been in several eases, which he cited, most usefully exercised on questions of international law and home policy, as well as on questions of individual dispute. When he first recommended the adoption of this course, he was told by his noble and learned Friend near him (Lord Cranworth) that such a reference could not be made to the Judicial Committee because this question might come before them in a legal form. That objection was quite untenable, because the Judges were now required to answer questions put to them by the House of Lords upon cases which might come before them in their judicial capacity, and indeed would necessarily come on many occasions, as, for instance, in McNaughten's case, when they were asked as to the rules of law on the subject of insanity giving an immunity for crime, a case of very frequent occurrence in criminal courts. A decision of the Committee of the Privy Council would settle all the im- 1950 portant questions in the case of the Cagliari might have some effect with the Sardinian Government, and would enable our own Ministers to act according to law in a case of some nicety.
LORD CAMPBELLsaid, he would not at that hour of the evening enter into a dissertation on the law of nations, but would take the opportunity of expressing the difference of opinion he entertained from his noble and learned Friend as to the expediency of making any reference of this matter to the Judicial Committee of the Privy Council. He had great respect for the Committee of the Privy Council, and happened to be a Member of it; but he did not think that any good was likely to arise from referring the present case to that learned body. No doubt the Act of Parliament to which his noble and learned Friend had referred, gave power to the Privy Council to consider this subject; but the question was, whether there was any necessity for it, or whether there was any advantage to arise from it. In the first place, the Judicial Committee of the Privy Council might not be unanimous in coining to their decision; they might differ like the Solicitor General and the Queen's Advocate, and this would give to the King of Naples a plea for refusing compensation which he did not now possess. Another reason was, that this being an international matter, the Committee of the Privy Council was not a recognised tribunal. It was not like the Court of Admiralty but merely the Queen's adviser, and for but purpose of expressing to Her Majesty their opinions on questions submitted to their consideration. The reference too, was quite unnecessary; because, on the points in which the English and Sardinian nations demanded compensation, there was no doubt whatever about the law. Without giving any definite opinion on the doubtful question as to the right of the Neapolitan cruisers to seize the Cagliari, he thought that under the circumstances of grave suspicion in which the vessel was placed, the Neapolitan Government might well have supposed that those on board of her still had hostile designs against them, and would have been excusable in at least overhauling her: that, however, did not justify them in imprisoning our fellow-subjects and confining them in a dungeon, where they were exposed to such dreadful hardships that the one lost his reason, and the other had his constitution undermined. For this there could be no justification or 1951 palliation. If it were admitted that the capture of the ship was lawful, was it lawful to seize the English subjects who were on board engaged in their lawful calling, and against whom there was not a shadow of suspicion? He was delighted to find the unanimous opinion that prevailed amongst their Lordships as to compensation being demanded of the Neapolitan Government for the sufferings of these individuals; but on that point there was no necessity for any reference to the Committee of Privy Council. Then came the question as to assisting the Sardinian Government in what they demanded. They complained of the shameful condemnation of this vessel, against all justice and against all law. Of course, if the owners of the vessel could be implicated in any act of hostility or piratical design, the ship could be made a lawful prize; but this was not the case; on the contrary, the owners were not only not guilty of such complicity, but were as much aggrieved by what had been done as was the Neapolitan Government itself; and when these facts came out, it was an act of the greatest injustice in any tribunal to proceed to the condemnation of the vessel, Such a judgment as that was entitled to no respect whatever. He paid the greatest deference to the opinions of his noble and learned Friend, but he must differ with him as to the necessity of this reference, for he felt that it was calculated to do more harm than good.
THE MARQUESS OF CLANRICARDEhoped the noble Earl the Secretary for Foreign Affairs, would lay before the House the despatch from the Marquess d'Azeglio. It was necessary to have a clear understanding as to the contents of this despatch, for upon it much depended the action and line of policy that the Government ought to take in the matter. He understood the noble Earl to have advised the Sardinian Government to be quite certain of the law of the case, and to pursue a moderate course; and if the Neapolitan Government would not consent to surrender the vessel, to assent to a mediation; and also that Her Majesty's Government would support the Sardinian Government. Now, the real point which it was desirable to know, was the state in which the Government stood at the present moment with regard to its engagements towards Sardinia. It was clear from the papers that had been published that the Sardinian Government expected and had asked the support of the British Govern- 1952 ment, and he wished to know what answer the British Government had given to that demand. And when he said support, he meant really to ascertain what kind of support—because, when we talked of giving moral support to the Sardinian Government, while we had no Minister at Naples, we were talking of that which was nothing and of no account, unless we promised and gave a support of a more substantial character, which might be required. The noble Earl the Secretary for Foreign Affairs had said, that Naples and Sardinia represented two extreme opinions in Italy. Now, he (the Marquess of Clanricarde) entirely dissented from that opinion. The Sardinian Government, in his view, represented no extreme opinion, but on the contrary represented sound, moderate, constitutional opinions. Extreme opinions were represented, he was afraid, occasionally in Italy, but by persons of a very different class and character, with which the Sardinian Government had no connection whatever, and of which the Sardinian Government was the warmest and most efficient opponent. His noble Friend who had brought forward this question (the Earl of Airlie) did not say the Government were to blame for not going to war, nor did he wish this country to go to war, and he did not express anything of the kind; but the question was, whether the Neapolitan Government should be allowed by us as well as by the Sardinian Government to do wrong, and to persist in that wrong. He trusted and believed that in this matter Her Majesty's Government had acted rightly. That was the point to which the attention of Parliament and the country was directed, and he believed that if this despatch and the answer of Her Majesty's Government were laid on the table, it would be satisfactory to the House and the country.
§ LORD CRANWORTHconsidered that a reference of this question to the Committee of the Privy Council would place the Government in an awkward if not discreditable position. He would not discuss the question of the rights of either country. As far as England was concerned, the question of right had been decided, and a demand had been made for reparation upon the Government of Naples. But it was now proposed to refer the question to one of our own tribunals, as to whether another country, Sardinia, had a good claim against a third country, Naples; and he could not conceive anything more 1953 calculated than the reference proposed to the Committee of the Privy Council to place the Government in a difficult and embarrassing position. Let the result of this discussion be either one way or the other, he did hope there would he no reference of the subject to the Committee of the Privy Council.
§ THE EARL OF DERBYsaid, that he fully agreed with the opinions expressed by the noble and learned Lord and by the Lord Chief Justice, that this matter ought not to be referred to the Judicial Committee of the Privy Council. As had already been said, such a reference was in the first place now unnecessary; in the next place it might be extremely inconvenient were different opinions to be expressed by that learned body; and, lastly, their decision when given would not be binding upon a foreign country. For these reasons, although the noble and learned Lord was right in saying that Parliament had the power to refer the matter to the Privy Council, he thought it was inexpedient to do so. If his noble Friend (the Earl of Airlie) had been supposed to have represented Sardinia as being a country of extreme opinions, he was exceedingly glad that the noble Marquess opposite had given him an opportunity of explaining this misconception. What his noble Friend did say was—not that Sardinia was a country of extreme opinions, for he rather concurred with the noble Marquess in thinking that Sardinia, in an unexampled manner considering all the circumstances of the case, maintained a sound constitutional Government on the soundest principles—what the noble Earl did say was, that Sardinia and Naples were, as regards their system of government, two extremes—that Sardinia was understood to represent the most liberal principle in Italy, and Naples the most extreme or despotic opinions the other way. It was in that sense that the noble Earl intended to explain that they represented two extreme opinions. He (the Earl of Derby) would not prolong the discussion that had taken place; he rose principally for the purpose of expressing his satisfaction at the manner in which his noble Friend opposite (the Earl of Clarendon) had expressed his valuable concurrence in the course that Her Majesty's Government had taken on this occasion. He thought that concurrence of opinion, coming as it did from that side of the House, would materially strengthen the hands of Her Majesty's Government in carrying on the 1954 further negotiations which were still in progress. This was most satisfactory to the Government, and most honourable to the noble Earl who so expressed himself. As regarded the question put to him by the noble Marquess, whether Her Majesty's Government were prepared to lay on the table the correspondence with the Neapolitan Minister, the Marquess d'Azeglio, he had to say that he was not at present prepared to lay that despatch upon the table; and he thought that on reflection the noble Marquess himself would see that, although upon the present occasion his noble Friend, in answer to the question of the noble Earl opposite, thought it expedient and desirable that they should explain the course—the general course— that Her Majesty's Government had pursued, and intended to pursue, on this important question, yet it was quite impossible, while negotiations were still pending and in progress, that they should step by step lay on the table of that or the other House of Parliament those despatches and those representations which they had made to Sardinia, and the answers they had received from Sardinia; and thus by putting out the whole correspondence piecemeal, interfere most mischievously with the conduct of the diplomatic negotiations that were still going on. In addition to the satisfactory concurrence of opinion on this important question that had characterized both sides of the House as to the correctness of the course Her Majesty's Government had pursued, and were now pursuing, he was happy to say that Her Majesty's Government were acting also strictly in concurrence with the views of the French Government. The French Government, he was enabled to say, had declared a very deep interest in the question, and in the preservation of international rights arising out of this question; and he believed the French Government had almost entirely concurred in the opinions entertained by Her Majesty's Government on this matter, and had certainly entirely concurred in the advice given to the Sardinian Government as to the mode of proceeding they should adopt in the event of reparation being refused by the Neapolitan Government. On one point which he thought had been misunderstood by some noble Lords, he would make one remark. The noble Earl seemed to have understood that we had supported Sardinia in her demands for restitution and indemnity. But the question of indemnity was one which, as between England and 1955 Sardinia, had been kept quite distinct from the question of the seizure and restitution of the vessel. The question of a pecuniary indemnity had not been raised by Sardinia, and the English Government had thought that they ought not to bind themselves up with any question of indemnity to the owners of the vessel. What the Government had done was, to promise to give Sardinia the aid of all their moral force in pressing her demands upon Naples. All that they had promised was their good offices, and they had, in concert with France, recommended Sardinia not to have recourse to any measures of violence, but to act on the principle of calling for the mediation of some third Power. Having explained the course Her Majesty's Ministers had taken, he hoped it would be to the satisfaction of the noble Earl opposite. In this House so much forbearance had been shown in the matter—so much reluctance had been shown to interfere with negotiations, which he hoped would lead to a satisfactory termination, that he should much regret if anything occurred to interfere with such negotiations, the satisfactory termination of which he must observe were rather impeded than promoted by repeated discussions of the question.
§ Motion (by leave of the House) withdrawn.