HL Deb 08 March 1869 vol 194 cc825-30

Order of the Day for the Third Reading, read.

Moved, "That the Bill be now read 3a"—(The Earl of Clarendon.)


I very much regret that I was not in the House on Thursday evening last, when the noble Earl the Secretary of State for Foreign Affairs took occasion to make some observations upon a statement made by me in the debate upon the second reading of the Bill, to the effect that I had not been consulted by the Government of the day previously to the adoption of the Act of 1845. I had not the slightest notion that it was the intention of the noble Earl to make any observations whatever upon that statement, or I certainly should have been in my place in the House. The noble Earl has said that as I was so constant in attendance he took it for granted that I should be present on the evening when he called my conduct in question. My Lords, I am quite sure that was the reason which induced the noble Earl not to give me the customary notice; but I cannot help thinking that, when the noble Earl came down and found that I was not in the House, as the matter was not pressing, and as there could have been no inconvenience in postponing his observations to the following evening, he might, in courtesy, have done so upon this occasion. I will go a little further. The noble Earl had found in the Foreign Office an opinion of mine, given by me when I was a Solicitor General, in conjunction with Sir John Dodson, the Queen's Advocate, and Sir William Follett, then Attorney General, on the Brazilian Treaty. That document convinced the noble Earl that I was inaccurate in the statements I made. I can hardly think that the noble Earl could have attributed to me any intentional mis-statement. [The Earl of CLARENDON: Hear, hear!] He might have thought that it arose from a failure of memory, and it would have only been consistent with the character of the noble Earl if he had sent me a line to say that I was under a mistake as to what had happened twenty-three years ago, for he had found an opinion which I had given at that time upon the subject. I can assure him that if he had done so I would have come down immediately and expressed my sense of obligation to the noble Earl, and I should have, of course, admitted that I was inaccurate in the statement I had made. I do not know that then; was anything which I said upon the second reading of the Bill, which should induce the noble Earl to treat me—I will not say with intentional discourtesy—but, at all events, in so unusual a manner. The present Government had nothing to do with the Act of 1845, and the present Bill is introduced for the purpose of repealing it. Whatever my opinion might originally have been, I examined very carefully, before the discussion upon the second reading of the Bill, the treaties with Portugal, and the treaty with Brazil of 1826, and I have conscientiously come to the conclusion that that Act ought never to have passed. The difference between the noble Earl and myself was that he proposed the repeal of the Act because it had done its duty in suppressing the slave trade, while I, on the contrary, having re-examined the matter, changed my opinion and came to the conclusion that the repeal of the Act was proper because it ought never to have been passed. I have merely risen to state that I had utterly forgotten the fact of my having been consulted as to the treaty and having given an opinion twenty-three years ago. I regret very much the inaccuracy of my statement, and still more that it should have placed the noble Earl under the necessity of making personal observations upon me during my absence.


I can assure the noble and learned Lord that there was not the slightest intentional disrespect on my part in the observations I made on the previous evenings. What I said was that the noble and learned Lord was one of the most constant in his attendance in this House, and that it did not occur to me that I should not find him in his place when the Bill went through Committee. If it had occurred to me that he would not have been present I should have sent him the notice that he had a right to expect. Perhaps I ought not to have made that statement in his absence. If in any respect I was deficient in courtesy to the noble and learned Lord I must express my regret; but I must say that I very much desired to remove the impression that, I believe, would prevail, and which I know did prevail in some quarters, that the noble and learned Lord, having been a Law Officer of the Government who introduced this Bill, had not been consulted with respect to this measure. I listened with very great respect to the speeches of the noble and learned Lord, and the other noble and learned Lord (Lord Cairns), because they analyzed and pulled to pieces a Bill that was about to repeal an Act of Parliament, upon the ground that it was unjust and harsh, and that the Government and the country had no right to pass it. In fact, they used all the arguments which the Brizilian Government were in the habit of using against that treaty. The tendency of such a course must be to revive bad feelings and old animosities. Their opinions, coming from lawyers who have held such high offices, of course command great respect, both at home and abroad, and they would not only revive animosities in Brazil, but claims against Her Majesty's Government that can never be recognized. With regard to the noble and learned Lord's defect of memory, I must add that in 1849, when the noble and learned Lord was free and unfettered from office, a Bill was brought in by Mr. Milner Gibson to repeal the Act of 1845. The noble and learned Lord was not only in the majority against the Bill, but he took the lead in opposing it, and an hon. Member who was present told me that so well did the noble and learned Lord defend the Act itself and the principle on which it was founded, that although Lord Palmerston and Sir Robert Peel followed in the debate, they could say nothing new, and the opponents of the Bill concentrated their efforts in attempting to answer the noble and learned Lord. I have not been able to refer to that speech of the noble and learned Lord; but I have no doubt I should find in it an ample refutation of the speech which the noble and learned Lord delivered the other night. The noble and learned Lord the Leader of the Opposition (Lord Cairns), treated the production by me of the opinion of the Law Officers of the Crown as a breach of confidence almost without precedent. I did not quote the opinion of the Law Officers of the Crown—I merely read an abstract of that opinion, such as we are in the habit of making at the Foreign Office of the confidential despatches which are laid before Parliament. I brought with me the correct copy of the opinion of the noble and learned Lord and the other Law Officers of the Crown, that he might test its accuracy. There are certainly precedents to be found for producing the opinions themselves. An Address was moved by Lord Malmesbury for copies of any Papers or opinions relative to the assessment of claims of compensation against the Government of Brazil. Another case still more recent can be quoted in reference to the Hyde Park riots, in May, 1867, when my noble Friend (the Earl of Derby), then at the head of the Government, not only produced the opinion of the Law Officers of his own Government, but also those of a former Government. The public mind was then much agitated, and it was a matter of importance to show on what grounds the Government had proceeded, and what was the state of the law, and my noble Friend took a most authentic means of putting the public in possession of that which it was most desirable should be known. One of the opinions then produced was signed by Sir Hugh Cairns, and it was read before the noble and learned Lord, then a Member of this House, without any opposition being raised on his part to the proceeding. A precedent was thus established for reading the opinion of a Law Officer of the Crown verbatim, which is what I did not do.


I rise in consequence of the remark just made by the noble Earl. I stated the other day that I remembered one instance in which a general rule had been departed from on very special grounds, but at the time the rule was departed from a protest was entered against its being brought forward as a precedent. I recollect that in the' much disputed case of the claims made with reference to the steamer Cagliari the Law Officers of two successive Governments differed in opinion, and the Law Officers of the second Government were not even unanimous. On that very special and peculiar ground the House of Commons asked for the opinions of the Law Officers, and they were laid before it. Of all cases in which I should have thought it improper to depart from the general rule that the opinions of Law Officers are sacred. I should have thought that case the strongest where you wish, not to establish some question of general interest, but to found a personal charge against one of the Law Officers of the Crown who signed the opinion.


I think the noble and learned Lord has made a mistake in supposing that the noble Earl, brought this matter forward the other day with any personal motive. As a discussion may arise between the Brazilian Government and this country it was desirable that the Brazilian Government should not be led into the belief that the Government of this country had not acted upon legal advice of an imperfect character. The other day the noble and learned Lord had gone away, or I should have ventured to remonstrate with him for stating that words which fell from him were unimportant. I think it can hardly be considered that words used by a noble and learned Lord, holding the position of ex-Lord Chancellor, are unimportant; on the contrary, they are regarded as of the greatest possible importance. He stated on that occasion that there had never been but one precedent of the communication to Parliament of the opinions of Law Officers, and that was protested against. Three such instances have been quoted this evening. The noble and learned Lord now draws a distinction between opinions on national and opinions on international questions; but he did not give us the slightest hint the other day of any such distinction. However, I remonstrate against the doctrine that words falling from him can be of little or no importance.


The noble Earl says he would have remonstrated the other day, but that I had left the House, and to-night he has adopted a course which conies exactly to the same thing, for I have already spoken in this debate, and therefore am not able to reply without violating the rules of debate in your Lordships' House.

Motion agreed to; Bill read 3a accordingly, and passed, and sent to the Commons.