§ LORD LYNDHURST
said: My Lords, I am anxious to call the attention of Her Ma- 306 jesty's Government to a publication of the Neapolitan Government which has lately appeared, relating to the case of the Cagliari. and therefore, of course, to our poor unfortunate countrymen at present upon their trial in the Neapolitan dominions. The law upon this subject was very precisely stated a short time back by the noble Lord at the head of the late Government. The noble Lord stated that if the Cagliari had been placed in jeopardy by any voluntary act of her captain in conducting her into the waters of Naples, and they had been there seized, then he should not be justified in attempting to interfere with regard to our unfortunate countrymen; but upon the other hand, if the vessel was taken possession of by a superior force and subsequently captured and carried within the jurisdiction of Naples, in that case we should be entitled to claim the liberation of our countrymen. Now, I have no doubt that the opinion expressed by the noble Lord was the opinion which had been communicated to him by the law officers of the Crown; and I now beg leave to direct your attention to the publication to which I have referred. In that publication it is stated in distinct terms that the vessel was captured by two Neapolitan frigates and carried from the place where the capture took place into the jurisdiction of Naples, and it goes on to say that the capture being a good capture, the vessel was afterwards condemned. Upon that statement, therefore, and referring to the opinion expressed by the noble Lord at the head of the late Government, we have a perfect right to insist upon the liberation of our unhappy countrymen. That right existed at the time the question was first discussed and exists now. I do not for a moment pretend to say what should be the policy to be pursued by Her Majesty's Government. I leave that entirely to their own discretion, and that more particularly after the long period of seeming acquiescence in the course adopted by the Neapolitan Government. I put no question, even to Her Majesty's Government; but I merely make this statement in order to draw their attention to the subject.
§ THE EARL OF MALMESBURY
My Lords, before I make any remark on what has been stated by my noble and learned Friend, I beg the House distinctly to understand that up to the 26th of last month Her Majesty's present Government are in no degree responsible for any act taken either by Her Majesty's late Government 307 or by the Sardinian Government with respect to the capture of the Cagliari. That being, as I have no doubt it will be, admitted by both sides of the House, I think it will be as well to state in a few words the circumstances attending the capture of the Cagliari as they really occurred. That vessel started in January from Genoa bound for Tunis. She bad, among her crew, two Englishmen, as engineers. It appears that a certain number of men had conspired against the Government of Naples, and, if I may use the terms, disguised themselves has passengers, having took their passage on board of her. Then, after she had proceeded to sea some distance, those men rose, mastered the crew and the captain by force, and directed the ship's course to a certain island, called Ponza, where some Neapolitan convicts were in prison. There they landed, liberated those convicts, and then, accompanied by them, proceeded to make a descent upon the territory of Naples, for the purpose of raising the country against the Neapolitan Government. Having done this, they permitted the captain and the regular crew of the Cagliari to depart. It is said by one party that the captain intended to go to Naples, and that he steered his course for that his original and lawful destination. There is no positive proof of this, but I believe this to have been the case. Whilst on his way he was met by the two Neapolitan frigates, which, no doubt, were on the look-out for the ship that had been the means of this attack; the Cagliari was captured, and, with the crow, was taken to Naples. The Neapolitan Government instituted a claim of jurisdiction over the captain and crew, in order to ascertain whether they were parties to the violent attack made upon the island of Ponza and on the territory of Naples, or whether they were entirely innocent. It Was at this point that the Government interference took place. Her Majesty's late Government were for some time—for four or five months—under the false impression that the ship was captured in Neapolitan waters. But, on the 17th December, the exact truth was ascertained, 'namely, that she was captured on the high seas. On the 24th December they consulted the law officers of the Crown. Upon that day, and twice since then—indeed, three times before the end of February — they consulted the law officers, and three times the law officers declared their opinion that the capture of the Cagliari was a legal capture. Under those circumstances, if appears clear, 308 as far as the papers can show—and we have perused them with great care and interest, that Her Majesty's Government did not intend any further to dispute the legality of the capture. But it has been stated by the noble Viscount who was at the head of Her Majesty's late Government (Viscount Palmerston), in another place, that Her Majesty's Government had not made up their minds on that point. I cannot, of course, answer for that statement; but I wish the House distinctly to understand that at that point, and that point only, our responsibility begins. Now, my Lords, that being the state of facts, and the opinion of the law officers of the Crown on those facts, being as I have stated, some new facts have come to light since I have hold office—which I did not find mentioned in the papers—which I think will justify Her Majesty's Government—considering the great interest which this case excites in the country, and that upon our decision the protracted imprisonment of our countrymen may depend—I think that Her Majesty's Government are fully justified, before adopting any measures which they may propose to follow—in referring the case again to the present law officers of the Crown, and then in laying before Parliament the papers respecting it. They are very voluminous, and cannot be collected and arranged in a very short time. But I shall take care that they shall be collected and arranged, and presented to your Lordships and to the other House as speedily as possible. I have heard that the late Prime Minister has expressed his wish that they should be so produced. I have nothing now to add except the statement which I make with all respect to the opinion of one so eminent as my noble and learned Friend, that his view of the legal part of the question is not in accordance with that of the law officers of the Crown, as at present given. Her Majesty's Government feel as deeply as any of Her Majesty's subjects with respect to the sufferings and protracted imprisonment of these two poor engineers. Her Majesty's Government feel that not a moment should be lost in the progress of the case, and in the meantime they will take every means of alleviating the cruelty of their confinement.
§ LORD WENSLEYDALE
wished to point out that there was another means of obtaining a legal opinion upon this question of international law, and he believed it would be a more competent opinion than that of the law officers of the 309 Crown—he referred to the Judicial Committee of the Privy Council. The opinion of the Judicial Committee might under the Act be taken, and he for one believed it would he a better course to adopt than to rely upon the opinion of the two persons who might happen to be the law officers of the Crown.
§ LORD LYNDHURST
I must not he understood as having given any opinion on this question. I was mistaken in the statement I made in consequence of the manner in which the law was stated by the noble Viscount to whom I have referred. He put two cases distinctly in these terms— first, he said if the captain of the vessel by his own voluntary act conducted the vessel within the waters of Naples we had no right to interfere. I say nothing with respect to the law on that point. But he went further, and stated that if by superior force the vessel was seized and conducted into the waters of Naples, in that case the act was illegal, and we had a right to interfere. I was induced to bring this point before your Lordships' attention in consequence of the Neapolitan Government having, by a late publication, made it perfectly clear that the vessel was captured by two Neapolitan frigates, not within the waters of Naples, but beyond them. If, then, the law is as stated by the noble Viscount, it is impossible to say that we are not entitled to insist on the liberation of our countrymen. That force was used is admitted by the Neapolitan Government itself in the very document to which I have referred.
§ EARL GRANVILLE
I think it is but fair to Her Majesty's late Government that when questions involving declarations made by them are intended to be put to the present Government some notice should be given, as we should then be prepared to answer any such questions. In any case I, being a non-legal Member of your Lordships' House, should think it better to refrain from entering into the details of the law, I believe that the noble Earl the Secretary of State for Foreign Affairs has correctly stated the facts, except as to the place of destination of the vessel, which I believe was Tunis and not Naples. Her Majesty's late Government thought it better to see what effect the application of the Sardinian Government to the Neapolitan Government would have before any further steps were taken on behalf of the English prisoners.
§ THE EARL OF DERBY
I quite agree with my noble Friend opposite (Earl Granville) as to the inconvenience of raising questions of such importance without notice; and I can only say that I was as much taken by surprise as my noble Friend by my noble and learned Friend's statement. With regard to what has just fallen from my noble and learned Friend, I will only say that I believe there is in existence such a document as he has referred to from the Neapolitan Government in answer to the Sardinian Government, but up to this moment that document has not been received at the Foreign Office. Nothing has been received from Sardinia except the bare statement of our Minister at Turin that the Neapolitan Government had refused to comply with the demand made upon it by the Sardinian Government to deliver up the vessel. I will only venture to say, with great respect to what fell from the noble and learned Lord (Lord Wensleydale) on the other side, that, however satisfactory it may be on all questions to obtain the judgment of so important a tribunal as the Judicial Committee of the Privy Council, I do not believe there is any precedent for referring to their judgment any question which does not come before it by way of appeal in a legal transaction. The ordinary course in cases of this kind is undoubtedly that the Government should refer the question to the law Officers of the Crown and the Queen's Advocate, and be guided by the advice which they may give.
§ LORD WENSLEYDALE
said, he had merely suggested that questions of this nature might be properly brought before the Judicial Committee of the Privy Council if there were any difference in the opinion of the law officers upon such an important matter—indeed, in that case, it would be better to take the advice of the Privy Council.
§ LORD REDESDALE
It appears to me that in considering the case we ought to ask ourselves how we should have acted under similar circumstances. In all matters we ought to do as we would be done by. Now, I freely confess that I believe if any vessel of any sort or from any quarter were to land men upon our shores, who then proceeded to break open our prisons and release the convicts, in order to obtain their assistance in committing acts of violence against the Government and the constituted authorities, the captain 311 of any of Her Majesty's vessels that might happen to be near the point of embarcation would act in a very extraordinary manner if he did not get possession of that ship and bring it into one of our harbours, in order that it might be ascertained whether the parties who had the management of that vessel were responsible for the acts of those who had been on board. I think that we should very carefully inquire into the manner in which that vessel came into the possession of those parties who had committed acts of violence against the Government and the constituted authorities, I think, therefore, that the Neapolitan Government were justified, at all events to a certain extent, in what they have done. Whether they have carried the matter further than they ought to have done certainly remains to be proved; but I do think that a very unjust amount of blame has been cast upon that Government with respect to the seizure of the Cagliari. Whether those persons who were on board had been treated by the Neapolitan authorities in a proper manner is another matter; but I do not think that they ought to be blamed for the seizure. When such an insult was offered to their territory as was offered by those who were in that vessel, it would be extremely unreasonable to expect that they should have taken no cognizance of it.
§ EARL GREY
said, that the brief discussion which had taken place showed how important it was that they should express no positive opinion upon the question until they were thoroughly acquainted with the facts, and were in possession of all the papers on the subject. He thought that there was much value in the suggestion of the noble and learned Lord (Lord Wensleydale) with respect to referring the matter to the judicial Committee of the Privy Council. When the Act constituting the Judicial Committee was passed, one of the duties committed to it was to give assistance in those cases in which it was necessary that the Crown should be advised upon important questions of law. It must not be forgotten that if, upon the advice of the ordinary law officers of the Crown, the Government took certain steps they might commit the nation and bring it into a situation of very great difficulty. The measures to be adopted in cases of this description required to be considered very carefully; otherwise rights might be waived, on the opinion of all the law officers, which 312 it would he highly important to maintain, and which perhaps would not be surrendered if the opinion of the Judicial Committee of the Privy Council could be taken upon them. The opinion of the law officers amounted to nothing less than a judicial decision in these cases, and therefore he thought there was much value in the suggestion thrown out by the noble and learned Lord below him (Lord Wensleydale). He trusted, when the papers upon this important subject should be laid before the House, that they would include any communication which might have taken place between the British and Sardinian Governments, in order to show how far the British Government had given assistance to Sardinia in her efforts to obtain justice.
said, the Act constituting the Judicial Committee of the Privy Council was framed in the largest manner possible, so that questions like the present might be brought within its scope and laid before the Committee. But in doing this great discretion would be required, because the Government might place questions before the Committee which would afterwards come before them for decision in their capacity as a Court of Appeal — questions which might involve points relating to the law of nations, on which they had themselves before given an opinion. It was not intended that the Judicial Committee should become the general Council of the Queen, but was a court of appeal, before which questions came for decision.
§ LORD CRANWORTH
agreed with the noble and learned Lord who had just spoken that there might be difficulties in referring a ease of this description to the Judicial Committee of the Privy Council. When he had the honour of holding the Great Seal it was proposed on several occasions to refer cases to this tribunal, but it had only been adopted in one instance—when a question arose between the Government and a colonial Legislature respecting the right of colonial Bishops— because it was felt that unless both parties were present to argue the case the real advantage of a judicial decision would not be obtained. Although the power existed, therefore, it was difficult to exercise it, because the Judicial Committee might give a decision, upon a case not argued judici- 313 ally before them, which might hamper them in their capacity of a court of appeal, if any case involving the same point should happen to come before them,