Lords Sitting of 13 February 1872

MINUTES.
SELECT COMMITTEE—First Report—Thanksgiving in the Metropolitan Cathedral. (No. 14.)
PUBLIC BILLS—First Reading—Ecclesiastical Courts and Registries * (15); Ecclesiastical Procedure * (16).

NEW PEER.
The Right Honourable John Evelyn Denison, late Speaker of the House of Commons, having been created Viscount Ossington—Was (in the usual manner) introduced.

PRIVATE BILLS.
Ordered, That this House will not receive any petition for a Private Bill after Thursday the 21 st day of March next, unless such Private Bill shall have been approved by the Court of Chancery; nor any petition for a Private Bill approved by the Court of Chancery after Friday the 10 th day of May next:
Ordered, That this House will not receive any report from the judges upon petitions presented to this House for Private Bills after Friday the 10 th day of May next:
Ordered, That the said Orders be printed and published, and affixed on the doors of this House and Westminster Hall. (No. 13.)

TREATY OF WASHINGTON—THE ALABAMA CLAIMS.—QUESTIONS.
LORD REDESDALEasked the Secretary of State for Foreign Affairs the following Questions:—Whether, if A. and B. in partnership sue C. in a Court of Law for injury done to their firm by fraud or otherwise, and C. pleads and proves that B. was acting with him in all the matters complained of, such plea would not be a complete answer to the suit, and render any recovery of damages impossible? Why a plea which is good in law, and which common sense pronounces to be just, has not been considered by Her Majesty's Government applicable to a new case in international law, and urged against the Alabama claims made on this country by the United States of America, in which the North and South are now partners, inasmuch as all the acts for which this country is charged with being culpably responsible were done by the South, and that partner now joins in the application to be paid for having done them? He had put a similar Question to the noble Earl the Secretary of State on two occasions last year. On the first of those occasions the noble Earl replied that he was not aware whether the point had been previously raised, but certainly it had not suggested itself to the Legal Advisers of either the present Government or the late one, and it had not formed a portion of the instructions given to our Commissioners. Now, it appeared to him (Lord Redesdale) that

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from the moment the North and the South concluded their differences it was an error to admit for a moment that the United States could claim damages for anything done by the Southern States, or in the interest of the Southern States, during the hostilities. By uniting with the Southern States after they had been recognized as belligerents the Northern States had condoned any offence of which the former might have been guilty, and we were entitled to say, "You have condoned the acts of the principal offender, and you cannot now have any claim against those who acted merely as their agents." He believed the only answer to this was what must be called a technical one. It was that the North and the South were not partners, the whole of the United States being one and indivisible. If this were the case now, certainly it was not the case while the war was going on, and when the South was acknowledged to be a belligerent. Having admitted that, no doubt the North had a right to insist that the South should pay the damages done to the North; but they took no such course, and having thus omitted to exact reparation from the party who had directly done the wrong, they could not now make any one else liable. Last year he asked the House to consider how the case would have stood if the result of the war had been different, and the Southern States had succeeded. Under such circumstances we should have had a right to recover from the South any damages which we might have paid to the North. He thought the question he had ventured to raise was well worthy of consideration, because we had to deal with a case which was entirely new in International Law. Whatever the technical answer might be, he held that what had been the Northern States and the Southern were practically partners, and that they could not justly ask compensation for acts done by one of the partners or in that partner's behalf before the present partnership. Of course, he did not admit that under any circumstances the Government of the United States had a cause of complaint against us; but he thought that the reasons he had adduced were a preliminary objection to any such demand as that which it had put forward, and he could not understand why it had not been made part of the English Case.
EARL GRANVILLE: My Lords, during the debate last week on the Address an unanimous feeling seemed to be entertained on both sides of the House that it would be better not to discuss the Alabama claims in the present state of the negotiations on the subject. But I do not think that unanimous feeling applies to the point brought under your Lordships' notice by the noble Lord this evening in repeating Questions which he put to me on two occasions last Session—and which I admit he has done in a singularly calm, temperate, and businesslike manner. The noble Lord will, however, excuse me if, on the part of Her Majesty's Government, I do not answer questions on English law put on a hypothetical case. When the noble Lord asked his Question last Session, I told him that when the Case of this country came to be prepared, it would be the duty of Her Majesty's Government to consider every possible point that could fairly and honourably be urged against the United States claims. The suggestions of the noble Lord have been brought under the attention of those learned persons to whom had been intrusted the preparation of the British Case; but neither these nor any other arguments had been used; for it had been thought that in drawing up our original Case it would be better to confine it to a statement of the facts which had formed subjects of the correspondence, and which we could prove, reserving arguments for a future occasion. The point raised by the noble Lord is, with others, still under the consideration of those whose duty it is to advise the Government in reference to the arguments which it may be desirable to use in support of our Case. Under these circumstances, I am sure your Lordships will agree that it would be improper for me to go further on this occasion.
LORD ORANMORE AND BROWNEsaid, he must first reply to the remarks of the noble Earl (Earl Granville), that the House had agreed that at the present time it was inopportune to discuss the question, which, though made on the noble Lord's (Lord Redesdale's) previous Motion, was evidently intended to apply to the Questions he now asked. Last Session he had thought there were special reasons that made it his duty, with every deference to their Lordships, to ask the House to pass a Vote of Censure on the

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Government for making the Treaty of Washington, and before he sat down he hoped he should show the House that there was an excellent reason for his now asking the Questions of which he had given Notice. He could not pretend to judge of what course it was expedient for those who sat on the front benches to take; but he must himself persevere in taking that which he believed the occasion required. He must first recall to their Lordships, as shortly as possible, what occurred last Session. Earl Russell, the Nestor of the Liberal Party, formed, an opinion so condemnatory of this Treaty that he moved an Address praying the Crown not to ratify it. In the course of the debate on that Motion, the noble Earl (the Earl of Derby) recommended their Lordships not to agree to the Motion, because a similar one could not be passed in the other House; and the Motion was not pressed to a division, because it was agreed, on both sides of the House, that it was informal. Believing the Treaty "contrary to the honour and dignity of this country," he brought forward a Motion to that effect; and he submitted that, had their Lordships approved of it, the country would now have felt that their Lordships' House had shown both foresight and public spirit. In addition to which their Lordships, by passing such a vote, would have made it evident to the American people that the Treaty was disapproved by many in this country, and probably the Government of the United States might have put forward very modified claims to those now submitted. He felt, therefore, that these circumstances entirely justified the course he took last Session. Before going further, he must recall to their Lordships that last year the noble Earl the Secretary of State for Foreign Affairs could hardly find terms sufficiently eulogistic to describe the conduct of those noblemen and gentlemen who negotiated this unfortunate Treaty; and, not satisfied with that, the Premier advised the Crown to bestow high honours on many of them. Now, all he would say was, that though they might have deserved those honours for other public services, it certainly was premature to bestow them for the benefits likely to accrue from this Treaty; but this was, in truth, a minor consideration, for the public cared little whether there was a Marquess more or less; but
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they felt much aggrieved at having, by the language of the noble Earl (Earl Granville), and by the conduct of Her Majesty's Government, been misled into the belief that perfect goodwill had been cemented between this country and the United States, and on the faith of this they had invested millions of money in American securities, at a rate of purchase which now left them heavy losers. He considered, that if nothing had occurred since the debate in this House on the Address, Her Majesty's Government having accepted the view then laid down by the noble Earl (the Earl of Derby), he did not think it would have been advisable to make any further remark at present; but utterances had been heard in "another place" that he thought demanded explanation, and these were the immediate cause of his Question. But before entering on these, he must ask their Lordships to remember that he last year called their attention to the fact that the difficulty American statesmen had in preserving good feeling between the two countries was the frequency of elections in the States, and the consequent necessity of both the Republican and Democratic parties bidding for the Irish vote, which, he was sorry to say, was always hostile to the Government and people of this country. He could intend no offence to the American Government or people in saying this; for, unfortunately, we knew what an ill effect that vote had on our own institutions, and he could not but think that it had much to do with the extraordinary Case lately presented by the American Government. On looking back, he did not think it at all difficult to see how the present misunderstanding arose. Last Session the noble Earl (Earl Granville) told their Lordships that he had not paid much attention "to points such as forms of expression;" whereas the whole of the present difficulty arose from what was included in "claims growing out." He thought that allowing an expression so indefinite in so serious a document must arise from childish simplicity or hopeless incompetency. It was a gross and palpable blunder, which had best be at once acknowledged and repudiated as loose phraseology; for to do the noble Earl (Earl Granville) justice, in his speech last year he most distinctly stated that

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these very indirect claims were entirely excluded from the Treaty, and as that statement was made in the presence of a distinguished American statesman, who was one of the negotiators of the Treaty, and as it was telegraphed to America, and then published in all the papers, only a few hours after it was spoken, he did think that it would have been more creditable to the American Government if they then held the views they now put forward in the American Case, not to have allowed the ratifications of the Treaty to take place when there was so wide a difference in the interpretation put upon it. He thought, therefore, whatever might be said on the strict legal interpretation, he could not see that there was the least doubt that in equity there was no ground for the monstrous claims now put forward by the American Government. That Government had, by having the American Case published in many languages, appealed to the public opinion of Europe. He would, therefore, ask the consideration of the American people to the following extract from The Allgemeine Zeitung, a paper of the largest circulation in Germany:—
"The tribute which Germany draws from France after a complete victory is insignificant compared with the compensation that the American Government demands in virtue of a Treaty which enthusiasts describe as the inaugurator of a new era of peace and friendship. The most hostile and contemptuous despatches of Prince Bismarck to the French Government are courteous and friendly in comparison with the indictment for which the President and his Cabinet are responsible."
He would ask the American people to consider how great and just would be their indignation if it were possible for the Press to state that the English Government had addressed their Government in such terms; and he would ask them to be sure that though Englishmen were calmer under the circumstances, they were no less determined than were the people of America to defend their rights. He would also ask the Americans simply to consider the common-sense view of the matter, and ask themselves whether any Government could undertake to leave to arbitration whether their countrymen were to pay some hundreds of millions of money. He would now ask their Lordships' attention to the statement made in "another place" by the right hon. Gentleman at the head of the Government. He said—
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"We do not mean merely to take our stand upon the ambiguity of the Treaty; we do not propose to allow in argument that it may bear two contradictory senses, either of which can with equal plausibility or with equal fairness be put forward. We have advised the Queen to state in Her Speech the construction which, as to certain claims, we put upon the documents. This construction, we believe, we can show to be the true and unambiguous meaning of the words, and therefore to be the only meaning admissible, whether tried by grammar, by reason, by policy, or by any other standard; and not one of several conflicting and competing meanings which can all alike attach to the Treaty, but the just meaning which it unequivocably bears.… But as far as we ourselves can judge, according to the best critical process we can apply to this document, we see no reason to admit that any fault in point of ambiguity has been committed, and we shall appeal to the direct and authentic sense of the document itself for confirmation."—[3 Hansard, ccix. 85.]
He concluded that this was another of those "messages of peace" which the right hon. Gentleman delighted to send. He conceived it was impossible to conceive language at the same time more arrogant, more irritating, and more bewildering. It seemed to him to say—"I'm all right and you're all wrong, and you've no sense if you don't see it." Well, he owned he had no sense, and did not see it, and he thought it highly improbable that the Americans would see it if the noble Earl (Earl Granville) couched his reply in such language; and he hoped, therefore, that in spite of the devotion which all knew the noble Earl had for his Chief, that he had replied rather in that extremely courteous tone which the noble Earl told their Lordships he always used in that House. He felt sure that the public would be glad to hear that while the noble Earl had replied in a tone which would show the determination of the Government no further to compromise the honour and dignity of this country, that nevertheless it was one to smooth down rather than excite angry passions. He hoped also that the noble Earl might be able to promise that in future the public might have earlier information afforded of documents which another Government had already published.
EARL GRANVILLE: The noble Lord has stated that he cannot understand why there should have been an unanimous agreement in this House not to discuss the subject of the Alabama claims and the Treaty of Washington at the present moment. I will not make the reply to the noble Lord which Lord Palmerston once made to a Member of

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the other House of Parliament, who had made an observation similar to that which the noble Lord has addressed to your Lordships, because he might not think it courteous; but I acknowledge with satisfaction the admission of the noble Lord that it might not be desirable that the occupants of the leading benches should enter into such a discussion as that which he has opened. I have therefore the authority of the noble Lord, who does not often agree with the Government, as well as of the rest of your Lordships, that I had better not answer his remarks. If the noble Lord wishes to move for the English Case, it will be immediately laid upon the Table; but, as regards the American Case, a very proper explanation has been given in "another place." That Case has not yet been presented by the American Government to Congress; and though I am not sure that in strictness we should not have a right to produce it after it has been so extensively published, and when, I believe, it is even sold in this country, yet we think it desirable that we should not do anything which could be regarded as a breach of etiquette towards the United States, and for that reason there is an objection to its production at present.
THE EARL OF MALMESBURY: My Lords, my noble Friend the Foreign Secretary is right in saying that there was an unanimous feeling that not much should be said on this subject; but the statement made the other night to that effect must be taken cum grano salis, because, as my noble Friend must know, a question which more than any other that I ever recollect has raised a feeling of astonishment and anxiety throughout the whole of the Empire must engage the attention of the House of Lords on a future occasion. To go into the matter is, in fact, a duty which we owe to the country. Besides, the discretion or the wisdom—if it was discretion or wisdom—manifested by this House has not been shown in "another place." A different line of conduct has been taken there, not by the Opposition, but by the hon. Members who generally support Her Majesty's Government. Therefore I presume the Government have not felt obliged to observe the reticence in that other place which they consider themselves bound to in this House. However that may be, I think it right to say
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that did Her Majesty's Government think a discussion of the subject here advisable, I am one who would give them my support on the question of the interpretation of the Treaty. I say that on this side of the Atlantic there can be no mistake as to the intention of the Treaty. There is not an Englishman who does not understand it as the noble Earl opposite understands it, and as its meaning was stated in the hearing of many Foreign Ministers who were present during the discussion of last Session, amongst whom was the Envoy of the United States. I am ready, therefore, to give my support to Her Majesty's Government as far as that goes. But I should be very sorry if it was supposed that our mouths were to be closed on the subject for any length of time; because there are other points in connection with the Treaty which must be discussed, and on which I must say I should be one of the first to attack Her Majesty's Government. One of those is the question of having sent out an Embassy at all. Next, without saying anything derogatory to the natural talents and natural abilities of the Commissioners, I must express my opinion that they were not sufficiently experienced in diplomacy.
EARL GRANVILLE: Sir Edward Thornton?
THE EARL OF MALMESBURY: He is a man of great experience; but he was subordinate, and could not be considered as one of the principals. There are several men of experience in diplomacy who might have been sent and whose names will at once occur to your Lordships. I know there are two opinions on this point. One is that of those who would send on such missions only diplomatists of tried experience; the other that of those who would rather make use of impromptu diplomatists to take in hand the chief business of the mission. I think my noble Friend the Foreign Secretary has rather a leaning in the latter direction. I have always been against it; and during the two years I had the honour to be at the Foreign Office, I always made it a point of placing at the head of missions men who had been brought up in the diplomatic service. I am not referring to complimentary missions, but to missions in which diplomatic business has to be transacted. I hold that a man must be educated to diplomacy as to anything

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else that requires great professional skill. I regret, therefore, that when negotiations of such importance were to be conducted at Washington men of that stamp were not sent out. Had they been, I do not think the errors which men of less experience might fall into were likely to have arisen.

HOUSE OF COMMONS PAPERS.
THE MARQUESS OF SALISBURY THE MARQUESS OF SALISBURY moved, That the Lists of Accounts and Papers printed by Order of the House of Commons, which are laid upon the Table with the Votes of that House, be printed and circulated with the Minutes of this House.
EARL GRANVILLEthought the proposition of the noble Marquess an excellent one.
EARL GREYsuggested that a means should be adopted whereby Peers who wished for certain Papers produced in the Commons might be able to procure them without moving for their production in their Lordships' House. It might be that only a very few Peers required a certain Paper issued to the Commons; but when a Motion was made for its production in the Lords, a sufficient number of copies had to be printed for all the Members of their Lordships' House.
EARL GRANVILLEsaid, the suggestion of his noble Friend should be considered by the Government.
Motion agreed to.
Ordered, That the Lists of Accounts and Papers printed by Order of the House of Commons, which are laid upon the Table with the Votes of that House, be printed and circulated with the Minutes of this House.

ECCLESIASTICAL COURTS AND REGISTRIES BILL [H.L.]
A Bill for better enforcing the Laws Ecclesiastical respecting the discipline of the clergy; amending the constitution and regulating the mode of procedure of the Ecclesiastical Courts; and regulating the government of the Ecclesiastical Registries in England—Was presented by The Lord CAIRNS; read 1a. (No. 15.)

ECCLESIASTICAL PROCEDURE BILL [H.L.]
A Bill for amending and declaring the Law as to the right of the laity to institute proceedings in the Ecclesiastical Courts, and for declaring by whom judgment may be pronounced for deposing Clerks in Holy Orders—Was presented by The Lord CAIRNS; read 1a. (No. 16.)
House adjourned at a quarter past Six o'clock, to Thursday next, half past Ten o'clock.