Lords Sitting of 25 February 1864

MINUTES.
SELECT COMMITTEE — on Opposed Private Bills, appointed and nominated (see page 1063).
PUBLIC BILL — First Reading—Insane Prisoners Act Amendment* (No. 14).

UNITED STATES.—THE AMERICAN CORRESPONDENCE.
The EARL of DERBY: My Lords, seeing the noble Earl the Secretary for Foreign Affairs in his place, I wish to recall his recollection to a conversation which took place in this House about a week or ten days since, with reference to the production or non-production of the Correspondence which had passed between Her Majesty's Government and the Federal States of America with regard to injuries sustained by American commerce, or apprehended, from vessels launched in the ports of the United Kingdom. On that occasion I stated—almost tediously, I am afraid, for I repeated it more than once—that the Correspondence for which I asked was simply that between Her Majesty's Government and the Federal States of America; and that I did not in the slightest degree ask for any Correspondence that would prejudice any trial or question now under adjudication in our courts of law. The papers for which I asked were simply those which I thought were necessary, in order to show whether Her Majesty's Government had vindicated the honour of this country, and whether they had scrupulously adhered to the principles of international law with regard to our neutrality. The noble Earl answered me that he was unable to produce the papers; for that—in spite of my disclaimer—they were papers that would injuriously affect a cause that was still pending, and which was not likely to come on before May
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next at the very earliest moment. The noble Earl said he could not produce them, and that he was fortified and strengthened in the way he was acting by the authority of the Law Advisers of the Crown. My Lords, I could not defer to the noble Earl's argument, but I did defer to the authority of his position in the Government, and also to the authority of the eminent persons on whose advice he acted, and I refrained from pressing for the production of the papers. I may say that I had, in my statement on that occasion, observed that there could be no great secret to be disclosed by their production, as all the papers I had asked for had already been laid by the United States Government before Congress; thereby clearly showing that the papers for which I asked were only those that had passed between the two Governments, and could have no bearing on the question now pending between Her Majesty's Government and individuals in this country. My surprise, therefore, was very great when, on looking into the Proceedings of the other House on Tuesday night, to find that a Motion having been made by an hon. Friend of mine for the production of two classes of papers—the one that for which I had asked and had been refused, and the second the Correspondence that bad taken place between Her Majesty's Government and the Messrs. Laird, the builders of the steam rams—Her Majesty's Government signified that the class of documents for which I have asked in this House, and had been refused—the Correspondence between Her Majesty's Government and the United States— would be laid on the table of the House of Commons—mainly, or exclusively indeed, on the ground that it included the second series of these papers. I cannot myself see any valid objection to it, as all the papers are in the possession of Messrs. Laird, who have not only copies of their own letters, but the original letters also that were sent to them by the Government, which if they saw fit they might send to the newspapers and make public to-morrow morning. In its discretion, however, the House of Commons decided that these were papers which were unfit to be produced at this moment. These were the papers for which I had not asked; but for the papers for which I did ask it was distinctly stated by more than one of the noble Lord's Colleagues that there was not, that there

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never had been, and that there could not be, the slightest objection to make that Correspondence public. And in answer to a moat able—though not more able than usual—speech of an hon. and learned Friend of mine who had carefully gone into the whole of the arguments, it was said on behalf of the Government that my hon. and learned Friend had thrown away a great deal of useful time, and a great deal of admirable eloquence, in arguing in favour of the production of the papers, to the production of which he must have known there never was, that there never had been, and that there never could be, any possible objection. As if to make the contradiction stronger of the views entertained by the Members of Her Majesty's Government, it is a fact that the hon. and learned Gentleman who threw out this taunt against my hon. and learned Friend was Her Majesty's Solicitor General, upon whose authority and advice the noble Earl told us he had been induced to withhold them. The circumstance is one which, I think, indicates pretty clearly the amount of concert which exists between Members of the Government. I do not, however, wish to go into that question, although I feel bound to observe that the case does not stand alone. About a fortnight ago, a Motion was made in the House of Commons for the production of the papers relative to the Saxon, but the papers were refused, inasmuch as it would be injurious to the public service to produce them. A few days after, a noble Friend of mine (the Earl of Carnarvon) moved in this House for their production, and they were granted without a moment's hesitation. The noble Earl said the papers were wholly innocent, and that it was quite right for Parliament to ask for them, and for Parliament to have them. My Lords, I have not quoted this second case for the purpose of making more manifest that want of proper concord, agreement, and concert that exists between Her Majesty's Ministers in the other House and the noble Lord opposite, but I have done it for a much more important reason. We have hitherto been used to lay so much stress on the declaration of a Minister of the Crown, made in his place in Parliament, and on his official responsibility, that the production of papers would be injurious to the public service, that it not only puts an end to any debate on the subject, but it puts an end to the question for the time being.
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It is most essential for the interests of the country that it should be so. It is most important that there should be this honourable confidence between Parliament and the Government; but if we find this answer is given so lightly and so capriciously—that papers are given in one House and refused in another — papers here granted and there refused—here refused and there given without one word of objection—if we see this answer thus contradicted by the acts of the Government—it will be impossible for this declaration to retain that weight with Parliament which it ought to have, and which up to this time it has had. It is necessary that I should call your Lordships' attention to this striking divergence of opinion between the Members of Her Majesty's Government in the two Houses of Parliament; and I put the question, whether, inasmuch as these papers have been presented to Congress, and also to the House of Commons, does the noble Lord still think it would be injurious to the public service to lay them before your Lordships? And also, if the noble Earl has changed his opinion, whether he will be so obliging as to inform us what circumstances have occurred in the short interval since the last discussion which have effected a revolution in his mind as rapid and as complete as that which the noble Lord has stated to have occurred with regard to the detention of the steam rams between the 3rd and the 6th of September last.
EARL RUSSELL: The statement of the noble Earl would be very striking if he had correctly remembered the facts of the discussion to which he alludes. The noble Earl has represented the case as if I had stated that the production of the Correspondence to which he now alludes between Mr. Adams and me was dangerous to the public service, and that I was supported in that opinion by the Attorney General and the Law Officers of the Crown. My statement if I recollect it rightly—and I think I do—was not that the production of the Correspondence as relating to the United States and this country would be dangerous, but that the Attorney General was of opinion that its production would lead to incomplete discussion in the House of Commons upon partial data and information, and therefore would be injurious to the case of the Crown in a cause which is coming on in a court of law. As Secretary of State I did not feel authorized in

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giving papers to Parliament when the principal Law Officer of the Crown told me their production would be injurious to the cause of the Crown in a case to be tried in a court of law. That is an entirely different statement from that which the noble Earl represents me as making—that I thought there would be some public danger in the production of those papers. The change which has taken place has taken place in the mind of the person who objected to their production. It was not I who made the objection, but my hon. and learned Friend the Attorney General. On reconsidering' the matter he told me he had come to the opinion that the papers could be produced not entirely without mischief, but without all the mischief which he apprehended. The objection of the Attorney General being waived, my objection is waived too, because I have no other objection than that which he stated. At the same time, I think it very probable that the production of those papers will have some mischievous and bad consequences attached to it; because now it seems to be thought, although I do not remember any former time when it has been thought, that nothing can be so proper, so becoming, so Parliamentary, when the Crown is proceeding in a court of law, as to endeavour to get the whole case of the Crown brought out first in the Houses of Parliament, and thereby to damage the cause of the Crown in a case which they have pending in a court of law; and I am afraid the production of these papers will have something of that effect, though the Attorney General thinks that objection may be waived. With regard to the other papers referred to by the noble Earl, the case is not quite what he imagines it to be—that papers, moved for and refused in the House of Commons, were at once granted in this House. The fact is, that when my noble Friend moved for a general account of the number of cases between the United States and this country, I did object, and I said that there were in the Foreign Office twenty volumes of papers already bound, and matter for twenty volumes more, the production of which would be very inconvenient. The noble Earl (the Earl of Carnarvon) then explained to me that he did not require all the papers— that he wished to have, in fact, a list of the cases upon which claims had been founded, whether for personal injury or loss of property, and I thought there
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might be some convenience, and, at all events, no objection, in having such a list made out. I have inquired how soon it can be done, and I find the making out the list will take about two months or upwards. I do not propose to give more than that list. I do not propose to give the despatches which were moved for in the House of Commons, except in one particular case, with regard to which the noble Earl (the Earl of Carnarvon) threw some doubt on the conduct of the Government. The case is that of a mate of a merchant vessel who was killed, where it has been imputed that the Government did not show proper earnestness in requiring the accused person to be brought to trial. I thought there ought to be no doubt in such a case, and that if the Government have done wrong it should be known, and that if the Government have shown proper activity it should also be made clear. The course taken in the House of Commons is therefore not contradictory to the course which I have taken with regard to those papers. Neither is there any difference between the Attorney General and myself, because the objection to the other papers being produced was made on account of the Attorney General, and not on account of the foreign affairs of the country.
LORD CHELMSFORD: My Lords, I think the noble Earl who has just sat down is a little inaccurate in his account of what passed on the Motion for the production of these papers. My noble Friend (the Earl of Derby) has referred to what occurred when he made his application, and when he drew the clearest distinction between any papers which might affect the trial in the Court of Exchequer and those which he distinctly stated could have no influence over it, namely, the correspondence that had taken place with the American Government. He also distinguished between that correspondence and the one with Messrs. Laird, which might undoubtedly have some influence on the trial; and further stated that, with regard to the American correspondence, there could be no objection to its production, as it had been already laid before Congress. The noble Earl the Secretary of State for Foreign Affairs has said that he acted originally on the advice of the Attorney General, who had since changed his mind, and it was but natural that the noble Earl should also alter his opinion. Will the noble Earl be good enough to tell us when it was that the Attorney General

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changed his mind, and when the Attorney General communicated the fact of this change to the noble Earl? And further, why, if the noble Earl learnt before to-day, or before the discussion in the House of Commons, that the Attorney General no longer objected, he did not come down and tell us that the objection originally made on the advice of the Attorney General no longer existed; and, therefore, that the papers might be produced? There is another thing which requires a little explanation. It seems that this opinion, that there could be no objection to the production of these papers, must have existed some time ago, and before the discussion in the House of Commons took place; because, if I am rightly informed, the Solicitor General taunted my hon. and learned Friend (Sir Hugh Cairns) who insisted in a most able speech on the production of the papers, with having known that there could be no objection to their production. Therefore, the noble Earl must have been aware there was no objection before the discussion in the House of Commons, and I think it was due to your Lordships that the noble Earl should have come and told us at the earliest moment, that a portion of the papers moved for would be given, instead of compelling my noble Friend to point out the mode in which Parliament has been treated.
EARL RUSSELL: The noble and learned Lord seems to think that I ought to have taken his advice instead of the Attorney General's opinion.
LORD CHELMSFORD: On the contrary, the noble Earl misunderstands me. I said he was right in acting on the Attorney General's advice in refusing the papers; but the noble Earl says the hon. and learned Gentleman has altered his opinion. What I want to know is, when the noble Earl first learnt that the Attorney General had altered his opinion, and withdrawn his objection to the production of the papers?
EARL RUSSELL: I consider the communication between the Secretary of State and the Attorney General a privileged communication, and shall decline to say when it was made.
LORD CHELMSFORD: Can the noble Earl explain why the Solicitor General told my hon. and learned Friend that he must have known there could be no objection to produce those papers.
EARL GEANVILLE: Really I must
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say I think the points raised by the noble Lords opposite are infinitesimally small. The noble Earl (the Earl of Derby) asked for an explanation why the papers asked for were given in the other House and refused in your Lordships'. Everybody who has heard my noble Friend's explanation must have felt that it was straightforward and satisfactory. When your Lordships consider all that is going on in relation to foreign affairs, the immense complications and anxieties existing, I am astonished that the noble Earl opposite should pursue my noble Friend with questions as to the time and manner in which he received the communications to which he referred; and taxing my noble Friend with such a breach of memory as not to have come down here when the Attorney General said he did not think it longer necessary to object to the production of the papers, to apologize to the noble Earl and produce the papers at once.
THE EARL OF CARNARVON: The House will excuse me for one moment, as I wish to call your Lordships' attention to what I think is not one of those infinitesimal points, as they are described by the noble Earl opposite, inasmuch as it relates to a promise which I understood the noble Earl the Secretary for Foreign Affairs to have given to the House about a week since in reference to a Motion I then made. My Motion comprised three distinct objects. I moved first of all for a Return of claims made by British subjects on the American Government. All I desired was a tabular statement, and I certainly was surprised to hear the noble Earl say that it would take two months to prepare it. The whole matter might be contained in one or two sheets of foolscap. The second object I had in view was to obtain the Correspondence in regard to the Saxon. That was agreed to as recorded in the Minutes. It was a separate and distinct point. That Correspondence, unless my memory deceives me, had been previously asked for in the House of Commons, and refused on the ground that its production would be injurious to the interests of the public service. My noble Friend was, therefore, perfectly accurate when he stated that those papers which had been refused in the House of Commons had been subsequently granted me in the House of Lords. I also asked for a copy of the instructions sent out by the Foreign Office in reference to

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the seizure of the Tuscaloosa. I hope the noble Earl will be willing to abide by the promise he made, and that there will be no difficulty in laying the papers upon the table of this House.
EARL RUSSELLI said that the case of the Saxon was one in which the noble Earl imputed to the Government that they had not shown proper anxiety to obtain redress for injuries done to a British subject, and it was right, therefore, that when such a doubt was started that the papers should be produced.
THE EARL OF DERBYThe noble Earl has just made out my whole case. It would, however, render the matter much more intelligible, if the noble Earl would tell us the precise moment at which the Attorney General changed his mind. My case was, that the papers had been refused in the one House as being injurious to the public service, and granted in the other as not being injurious to the public service. The noble Earl, however, declares that he had changed his mind on the subject in consequence of a privileged communication we have now heard for the first time which he had had with the Attorney General.

DENMARK AND GERMANY—INTEGRITY OF DANISH MONARCHY THE CORRESPONDENCE.—QUESTION.
THE EARL OF MALMESBURY: My Lords, there are some other papers which I wish to ask the noble Earl opposite a question about—I mean the Danish papers. We have received a portion of the Danish papers this morning, after waiting a much longer time for them than I believe to have been at all necessary. But those papers only begin from January, 1863. I have written privately to the noble Earl, representing the necessity of giving all the papers dealing with this great question from the beginning of the Correspondence —namely, from the year 1850—and comprising that which was continued through the years 1851 and 1852. This portion of the Correspondence is of the greatest importance. It is impossible to understand the whole bearing of the question unless we go back to the years 1850 and 1851, when Lord Palmerston was Foreign Secretary, and 1852, when my noble Friend behind me was in office. A proof of the ignorance which exists in reference to this question, and the impossibility of judging fairly and correctly upon it, may be found
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in the public papers. I do not think I ever saw the public press so wide of the truth as when dealing with this question. I do not blame it in the slightest degree, because it has really no data to go upon, and it is, therefore, constantly making mistakes. The press has taken the garbled statements of German newspapers and German pamphlets, and extracts from papers published by the French Foreign Office. It has not, therefore, put the whole case before the public, because it has no means of doing so. Both the public and Parliament are really ignorant of what has taken place. I will, however, state what has happened in respect to myself. The other night I recapitulated to your Lordships what I had done during my short tenure of office in 1852, in respect to the Duke of Augustenburg. I knew that what I said was perfectly exact and accurate, for I took care to look over all my memoranda made at the time. But in a day or two afterwards I received a letter from the brother of the Duke of Augustenburg, requesting me, in consequence of my having misstated what had taken place, to retract what I had said publicly in this House. Knowing that what I said was exactly the truth, and that I could prove it if I had the power of producing those papers — which, of course, I had not without Her Majesty's permission — I answered him that I respectfully declined to retract or to modify what I had said. I only quote this fact as an instance of how easy it is for a statement to be made by a man of the importance of the Duke of Augustenburg's brother, which is not quite accurate, and how easy it is to mislead the public as to their judgment. Surely on this question, which is now agitating Europe, the public should be made acquainted with what has taken place—how that Treaty of 1852 was discussed, negotiated, and completed, and what correspondence took place between the various Governments at the time in respect to Schleswig-Holstein and the great German Powers to whom we must attribute the deplorable events that have taken place. I, therefore, hope the noble Earl will have no objection to produce the whole of the Correspondence which took place in 1850, 1851, and 1852, on this subject, and the less so as I am informed it has been prepared.
EARL RUSSELL: I have to-day produced one portion of the Correspondence— the Correspondence which took place be-

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tween the Austrian, Prussian, and Danish Governments in 1851, in consequence of which the Treaty of 1852 was entered into. With regard to the subsequent period alluded to, I should like to communicate privately to the noble Earl about that part of the Correspondence, as I am not at present aware how far that can be produced.

CAPTAIN MELVILLE WHYTE'S CASE.

  QUESTION.
  THE MARQUESS OF CLANRICARDEasked, Whether the arbitrators in Captain Melville Whyte's case against the Government of Peru had given, or were likely soon to give, a decision in that matter?
  EARL RUSSELLsaid, the last account the Government had received with reference to the matter was that which he had stated to their Lordships a few evenings ago—namely, that one of the Senators of Hamburgh had the papers in his hands for the purpose of making a report to the Senate. He would inquire whether the affair could be expedited.

  OPPOSED PRIVATE BILLS.
  The Lords following—namely, L. COLVILLE Of CULROSS, L. PONSONBY, L. COLCHESTER, L. STANLEY of ALDERLEY, were appointed, with the Chairman of Committees, a Committee to select and propose to the House the Names of the Five Lords to form a Select Committee for the Consideration of each Opposed Private Bill.
  House adjourned at a quarter before Six o'clock, till To-morrow half past Ten o'clock