Lords Sitting of 2 March 1869

MINUTES.
PUBLIC BILLS—Second Reading—Brazilian Slave Trade (14); Common Law Courts (Ireland) (9).
Withdrawn—Lord Napier's Annuity Bill* (15).

NEW PEER.
Edward Anthony John Viscount Gormanston in that part of the United Kingdom of Great Britain and Ireland called Ireland, having been created Baron Gormanston of Whitewood in the county of Meath—Was (in the usual Manner) introduced.
BRAZILIAN SLAVE TRADE BILL—(No. 14.)
(The Earl of Clarendon.)
BRAZILIAN SLAVE TRADE BILL—(No. 14.)

  SECOND READING.
  Order of the Day for the Second Reading, read.
  THE EARL OF CLARENDONsaid, that before asking their Lordships to give a second reading to this Bill, which proposed to repeal an Act of the 8th and 9th years of Her present Majesty, passed for the purpose of putting an end to the Brazilian Slave Trade, by giving to Her Majesty's ships a right to search Brazilian vessels, he thought it would be proper that he should, state the circumstances under which that Act was passed, and those which now seemed to justify its repeal. It was hardly necessary for him to refer to the large scale on which the slave trade was at one time carried on by the Brazilians—he believed he might say without exaggerating, that between 1827 and 1844 nearly 300,000 slaves were imported into Brazil in defiance of treaties and of the reprobation of the civilized world. In 1845, the Brazilian Government notified to the British Government that the Convention of 1826 between the two countries pro-
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  viding for mutual right of search and Mixed Commission Courts having expired, they did not intend to renew it. But although Her Majesty's Government did not deny the right of the Brazilian Government thus to announce the close of the arrangement, still they were not prepared to allow the removal of all check upon this nefarious traffic, which there was now every chance would be carried on on a larger scale than ever. Under these circumstances, Her Majesty's Government introduced a Bill providing that, the Mixed Commission Courts having come to an end with the expiration of the treaty, the Court of Admiralty should have power to adjudicate upon and dispose of all questions arising out of the capture of slave vessels, and the disposal of the property of the owners. The Bill was introduced into this House by Lord Aberdeen, and into the other House by Sir Robert Peel; it passed without any division, and was commonly known as the Aberdeen Act. Simultaneously with its passing, Her Majesty's Minister at Bio was instructed to assure the Brazilian Government of the regret felt by the British Government that no other course was open to them, expressing also a hope that this state of things would not be permanent, and declaring that as soon as the slave trade should have been virtually pulled down, or the Brazilian Government should enter into any treaty or convention to act in concert with the British Government, this right of search and of adjudication should be given up. The provisions of the Act made, as might have been expected, a very unfavourable impression on the Brazilian Government, and they remonstrated strongly against it; but they did nothing whatever to check the traffic, for while in 1845 the number of slaves introduced into Brazil was estimated at 19,450, in 1846 it was 50,324; in 1847, 56,172; in 1848, 60,000; in 1849, 54,000; and in 1850, 23,000, of whom 17,000 were imported during the first six months. The reason of the reduction in the latter half of that year was, that Her Majesty's Government, finding that the trade was more flourishing than ever, and that the Brazilian Government were regardless of their obligations to put an end to it, made a change in. the instructions of the commanders of our cruizers, and they were

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  made more stringent. Hitherto our ships of war had been permitted only to seize Brazilian slavers on the high seas, but thenceforth they were allowed to seize them within Brazilian waters and Brazilian harbours and ports. The consequence was that numerous prizes were made, which were disposed of by our Admiralty Courts. This caused great; alarm in Brazil, and in 1850 their Government passed a severe penal law against the slave trade, and commenced; operations for its suppression. The result; was that in 1851 only 3,287 slaves were imported; in 1852, 800; in 1853–4, none; and there was no record of any landing of slaves since 1855, when an attempt was made and ninety slaves were landed, all of whom, however, with the exception of three, were captured by the Brazilian Government. It was only fair, too, to that Government to mention that they had lately manumitted large numbers of slaves who were the property of the Government, and that the tendency of the legislation of Brazil—whether based on abhorrence of the trade he did not know, but certainty based on what they believed to be the real interests of the country—was not only adverse to the slave trade, but was favourable to the entire abolition of slavery throughout the country. Twelve or fourteen years having elapsed without any importation of slaves having been known to have occurred in Brazil, the time seemed to have arrived for fulfilling the assurance made by the English Government that they did not desire the Act of 1845 to be permanent, but were willing that it should cease when the slave trade had ceased. The time, he repeated, had come for repealing an Act which as long as it-existed was a standing affront to a nation with whom we desired to be on friendly terms. On these grounds he hoped their Lordships would assent to the second reading of the Bill. Before sitting down, it might be interesting to their Lordships that he should mention that since 1866, there was no authentic record of any cargo of slaves having been introduced into Cuba, an island where the trade used to be carried on to a very great extent. Throe attempts to embark slaves on the coast of Africa had been unsuccessful, two of the vessels being seized by British cruizers, and the third being run ashore and destroyed. Looking to the present state and future
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  prospects of Cuba, there was every hope that the trade would cease, and it was satisfactory to know that a notorious individual who had actively carried on the trade on the African coast had lately broken up his establishment and left the country.
  Moved, "That the Bill be now read 2a."—(The Earl of Clarendon.)
  LORD CHELMSFORDsaid, that having at the time when the Act of 1845 was passed held the Office of Attorney General, to which he had shortly before succeeded on the lamented death of Sir William Follett, it might probably be taken for granted that he was one of the Advisers of the Government with regard to the introduction of that Bill. Now he begged distinctly to state that he was not consulted at all prior to its introduction, and that the Government acted on the counsels of men of much greater weight and authority than himself. Sir Robert Peel stated, in reference to that Bill, that having taken the advice of the highest authorities in the country, including the late lamented Sir William Follett, their deliberate opinion was that under the Convention, failing the agreement and consent of the Brazilian Government to other measures for the supression of the trade, we were entirely authorized in continuing to exercise the right of search over Brazilian vessels. He (Lord Chelmsford) must confess he always entertained serious doubts as to our right to pass such an Act; but the Bill having been introduced he was, of course, placed in a position of some embarrassment. Being now, however, released from all responsibility, and able to exercise an unfettered judgment on the subject, he must confess that, on renewed consideration of it, he felt surprised that the eminent men alluded to by Sir Robert Peel should: ever have thought that the Act was one which this country had any right to pass. He was, therefore, quite prepared to assent to its repeal. His reason for saying so was this—The Convention with Brazil in 1826, after its separation from Portugal, was designed to renew and confirm the stipulations contained in our treaties with Portugal for the abolition of the slave trade, those treaties being dated 1815 and 1817, and their important stipulations being a reciprocal right of search and the establishment of Mixed

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  Commission Courts for the abjudication of captured slavers. Following out those treaties, the Convention provided, by its third article, that all matters and things contained in the treaties should be applied, mutatis mutandis, as effectually as if inserted therein word for word; and the fourth article provided for the establishment of Mixed Commission Courts, providing that they should bear the form of that established by the Convention of 1817. Now the first article of that Convention was the foundation of the Act of 1845. That first article provided that after the expiration of three years from the ratification of the treaty it should not be lawful for the subjects of the Emperor of Brazil to be concerned in the slave trade, and that any person being so should be deemed and treated as guilty of piracy. There was a difference of opinion as to the exact meaning of this article. It was contended by the Government of the day that by this article Brazil agreed to deliver over to us Brazilian subjects engaged in the slave trade, to be treated as pirates. But this was surely a very strained construction, the fair and reasonable view being that Brazil, for the purpose of showing her sincere desire to abolish the slave trade, promised to deal with her own subjects who engaged in it as if they had committed acts of piracy. The object of the Convention plainly was that there should be reciprocal right of search and Mixed Commission Courts, and that Great Britain was authorized to demand the performance of the first article, in case she refused to deal with her subjects in the stipulated manner. Under the treaty with Portugal of 1817 there was power, under certain circumstances, of bringing it to an end at the expiration of fifteen years from the exchange of the ratification; but whether that stipulation was one of those incorporated into the Convention was immaterial, it being conceded both by Lord Aberdeen and Sir Robert Peel that the Convention had been brought to an end. Sir Robert Peel, speaking on the subject, said, "that the Government had the power at its own discretion to terminate the subsidiary Convention of 1842; Brazil had given notice that that Convention had come to an end, and Her Majesty's Government had thought fit to concede the right; "but he added that" there remained in force the original
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  article of the treaty of 1826, and that the object of the Bill was to give effect to the stipulations of that treaty." Now, why Sir Robert Peel spoke of a "subsidary" Convention it was not easy to understand, for there was only one Convention, and as far as Brazil was concerned all of its articles were as much original articles as the first was. It being admitted that the Convention had been brought to an end, it was assumed that the first article survived and was of lasting obligation; but he (Lord Chelmsford) must say that this was a very extraordinary construction. The article gave the right of search as a distinct stipulation; it was adopted into the Convention from the treaty of 1817. But the Convention of 1826 having been determined, and the Mixed Commission Courts having determined at the same time, it was a strong construction by the British Government that the right of search survived. The object of the Act of 1845 was to continue the right of search, which had been abolished by the termination of the treaty, and to give to the Court of Admiralty the power of adjudication in cases of capture of slavers, which had been expressly excluded by the Act 7 & 8 Geo. IV., passed to give effect to the Convention of 1826. This was a most extraordinary way of dealing with Brazilian subjects, and he could not but think that had a stronger State been in question we should hardly have ventured on such a procedure. Brazil would scarcely have allowed the right of search had it not been connected with the establishment of Mixed Commission Courts, and she could never have contemplated delivering up her subjects to our Courts. The Act, too, appeared to have been ingeniously rather than ingenuously framed, so as to avoid mentioning the termination of the treaty, which was obviously a formidable objection to it. Accordingly, the first part of the Convention only was recited, and it was then enacted that for the purpose of carrying it out the 7 & 8 Geo. IV. should be repealed, and the Court of Admiralty be allowed to exercise jurisdiction, and the Mixed Commission Court be continued six months for the adjudication of pending eases. If the Preamble had recited that the treaty was at an end there would perhaps have been an end of the Act, as

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  obviously inconsistent with that statement. Formidable objections were urged against the measure by Sir Thomas Wilde, and on referring to the few observations made by himself in reply it would be seen how difficult he felt it to give any satisfactory answer to those objections. The Act ought never to have passed, and he was glad that this standing offence to Brazil was now to be wiped off the Statute-book.
  THE BISHOP OF OXFORDsaid, he was sure their Lordships must have heard with great pleasure the noble Earl's announcement of the cessation of this abominable trade in Brazil, and also of its interruption in Cuba. The most hopeful and healthy feature of the case was the noble Earl's statement that there had grown up in Brazil a state of public-feeling most hostile to the traffic. He trusted that this great success would induce Her Majesty's Government to watch for every opening in order to bring about a similar result as regarded the eastern coast of Africa, where, he believed, the slave trade was as bad as it ever had been on the western coast. The half measures adopted by this country had done little more than all such measures in the case of grievous diseases; they aggravated and intensified the symptoms. He believed the trade was carried on with more circumstances of cruelty than at any former time or in any other part of that unhappy country. The necessity of keeping slaves after their capture until an opportunity of escaping our cruisers occurred had led to an amount of cruelty and loss of life in the barracoons where they were confined which was perfectly appalling. He earnestly hoped energetic measures of repression would be taken with regard to the atrocious traffic on the east coast.
  LORD CAIRNSsaid, that the noble Earl's statement of the present state of slavery in Brazil—whether that state had been brought about by our legislalation, or whether, as was probably the case, by the improved public feeling in Brazil—must give unqualified satisfaction. The repeal of the Act of 1845 was so right and proper a measure that he was unwilling to take exception to the manner in which it was proposed to be done; but he regretted that, instead of simply and unconditionally repealing the Act, the Preamble stated that the circumstances which led to its passing no
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  longer existed, by reason of the cessation of the importation of slaves into Brazil. No doubt that was the case; but he thought the Act ought to be repealed unconditionally, and not for reasons of cessation. The Act was one which ought never to have been passed, being an attempt by legislation to deal with the subjects and property of an independent sovereign Power, and in the case of a stronger Power than Brazil the Parliament of this country would never have passed it. It was introduced by Sir Robert Peel's Government, and Lord Palmerston, whose opinions on this subject were well known, being at the time in Opposition, the Opposition which would otherwise have been fatal to so anomalous a measure, was neutralized, so that it passed without a division. Sir Robert Peel, in the debate upon the Bill, made a singular admission. He said that it seemed a very strong measure for us to legislate for Brazilian subjects, and that although we had the Treaty of 1826, which stipulated that the slave trade should be deemed to be piracy on the part of Brazil, the Government would not venture to deal by legislation with the persons and lives of Brazilian subjects, but would only deal with their property. Now, if Sir Robert Peel's view of the treaty had been right, and if the stipulation meant that we were to be at liberty on the high seas, or within Brazilian waters, to enforce against those engaged in the traffic the penalties of piracy, we had as much right to proceed against their persons and lives as against their property. Sir Robert Peel's admission was thus realty fatal to the measure. The result of the Act had been that since 1845 our relations with Brazil had been kept in a continual state of irritation, and this was not surprising. He should like to have some information on a point connected with the Act of 1845. Some English merchants had for many years had large unsettled claims against the Brazilian Government, and some years ago a Mixed Commission was appointed to investigate the claims on both sides; but after the Commissioners had sat some time, and when the British claims were on the point of being settled, diplomatic relations were broken off in consequence of this chronic state of irritation, and the sittings were suspended. Now, he should be glad to know whether there was any probability of the re-

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  sumption or re-commencement of the adjudication on these claims.
  EARL GREYsaid, he did not intend to debate a question which was settled more than twenty years ago, but he felt bound to declare his utter and total dissent from the remarks of the two noble and learned Lords who had preceded him. He had been one of the supporters of the Act when it was passed, because he regarded it as one of the wisest and best measures ever submitted to the British Parliament, and it had certainly proved most successful—it had fully answered the purposes for which it was intended, and had prevented a vast amount of human suffering, reflecting therefore, the greatest honour on those by whom it was brought forward and supported. He would not go into legal subtleties as to the meaning of the articles of the treaty, for the question stood on far higher ground. Brazil had solemnly bound herself to do her best to suppress the slave trade, and, in return for that obligation, had received great favours and advantages from us. But she had totally failed to fulfil her obligation and had systematically and deliberately violated the faith she had pledged to us; and under these circumstances it became a great nation like England to look not to particular expressions, but to the substantial merits of the case—to the great and eternal principles of morality; and to say that Brazil having failed to fulfil her promises to put down the iniquitous traffic in slaves, we had the right and having the right it was our duty, in the interests of humanity, to enforce those obligations, and to take the best means of compelling Brazil to execute them effectually. These were the grounds on which Sir Robert Peel and Lord Aberdeen proposed the measure, with the full concurrence of the Leaders of the Opposition of that day, and for himself he must say that he at the time fully concurred in the justice of the measure. He therefore thoroughly differed from the two noble and learned Lords in the remarks they had made on the propriety of the measure of 1845. He would only say further that he had some doubts as to the expediency of passing the Bill which was now before them. It was said there was a great change in the state of feeling in Brazil upon this subject. He hoped that was true; but
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  at the same time he could not forget that if there was any change it had been brought about by the great pressure brought to bear upon them by the law which it was now sought to repeal. He could not forget that, as long as Brazil did really and heartily exert herself to prevent the slave trade, this law would remain a mere dead letter. That it was an affront to Brazil at the time it was passed he admitted, but it was an affront which was richly deserved. He hoped his noble Friend had fully satisfied himself that the conduct of Brazil in this matter was now without fault. He had not looked into the question for some years past, but he was under the impression that some time since Brazil, in spite of most urgent remonstrances, persisted in keeping in slavery a number of persons who had been imported from the coast of Africa, and whom they were under obligations to set free. He believed they were detained under some form of apprenticeship; but he supposed that had now come to a termination. As he understood that his noble Friend had no reason to doubt the fairness of the spirit in which Brazil was prepared to exert herself for the suppression of the slave trade, and of the existence of slavery, he would not oppose the Motion.
  EARL GRANVILLEsaid, he also shared the surprise of the noble Earl (Earl Grey) at the speeches of the two noble and learned Lords opposite. It was hardly necessary in discussing the second reading of this Bill to discuss the merits of the Bill which Sir Robert Peel introduced in 1845. The practical effect of it could only be to strengthen the Brazilian idea that they had a strong-reclamation against the international injustice of this country. For himself he believed there was no doubt of the legality of that measure, though it was generally admitted to be of a highhanded character, and that it might be construed into an insult. He believed, however, it was necessary in the then state of the temper and conduct of Brazil. He would not enter into the question of its original legality. He saw no danger in repealing it, for the traffic had long ceased, and the more enlightened feeling which now existed in Brazil and the self interests of the people were a security against the recurrence of the evil. It was very desirable, too, that

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  the relations between two countries which were so closely connected by commerce should be placed on a friendly footing. and the noble Earl (Earl Grey) was quite mistaken in thinking that the Brazilians felt indifferent at present on the subject.
  Motion agreed to; Bill read 2a accordingly, and committed to a Committee of the Whole House on Thursday next.

COMMON LAW COURTS (IRELAND) BILL.
(The Earl Granville.)
COMMON LAW COURTS (IRELAND) BILL.

  (NO. 19.) SECOND READING.
  LORD DUFFERIN, in moving that, the Bill be now read the second time, explained that an Act had already been passed assimilating the procedure of the Irish Chancery Courts to the English Courts, and that the present measure took the same course with regard to the Common Law Courts. It was framed in accordance with the recommendation of a Select Committee of which distinguished legal authorities were members.
  THE MARQUESS OF CLANRICARDEviewed with great satisfaction the introduction of the Bill into this House; but, in consideration of its having been only just printed, he deferred the observations he might feel it necessary to make upon it until the Motion for going into Committee.
  Bill read 2a (according to Order), and committed to a Committee of the Whole House on Tuesday next.
  House adjourned at a quarter past Six o'clock, to Thursday next, half past Ten o'clock