Lords Sitting of 7 March 1876

MINUTES.
PUBLIC BILLS—Second Reading—Second Marriages (St. James, Buxton)* (22).
Second Reading—Committee negatived—Third Reading—Exchequer Bonds (£4,080,000)*; Consolidated Fund (£4,080,000)*, and passed.
Select Committee—Ecclesiastical Offices and Fees* (3), nominated.

EXCHEQUER BONDS (£4,080,000) BILL.

  PERSONAL EXPLANATION.
  EARL GRANVILLE: My Lords, I rise for the purpose of making another personal explanation. I am sorry I have to do so, but it is not my fault. Mr. Disraeli is reported in the newspapers
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  of to-day as having stated last night in the House of Commons that the Papers respecting the purchase of the Suez Canal shares containing letters of Sir Daniel Lange to the late Government with reference to an alleged offer of the purchase of the Canal had been sent to me before publication, and that I sanctioned them. He stated afterwards that he did not wish to be understood as attaching any responsibility to me in respect of their publication. With reference to this explanation, I must say that I do not quite understand why he had alluded to the fact. He then went on to say that the Papers were submitted to me and that I raised no objection to their publication. I took the liberty of giving the noble Earl (the Earl of Derby) private Notice that I should ask him whether in his opinion I incurred any responsibility with respect to the publication of these Papers?
  THE EARL OF DERBY: If the noble Earl wishes to put to me the question, whether I desire to attach to any one who is not a Member of the Government any part of that responsibility which falls to the person who occupies the position I now fill, I am quite ready to give an answer in the negative to that inquiry. I do not hold the noble Earl responsible for the publication of those Papers. But when I say that, I presume that the noble Earl does not mean to deny that, although not responsible for, he was cognizant of, their publication. Following the precedent of the Department over which I preside, I had the pleasure to forward the noble Earl a Copy of the Papers which were to be submitted to Parliament, inasmuch as they related to business which passed in the Department during his tenure of office there. My noble Friend received them; and he will recollect that he had the thoughtfulness and kindness to offer me a suggestion with respect to one Paper, the publication of which he thought might be injurious to the public service. That suggestion I acted upon. Although I do not answer for the accuracy of what is reported to have been stated in "another place," if any statement was made there which might lead to the belief that the noble Earl is responsible for the publication of those Papers, I am quite willing to say that he was not. What happened was this—The noble Earl was aware of

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  the publication, and did not object to it. While I say that, I am bound to add that I do not think my noble Friend was bound to express any opinion in the matter, one way or the other. So much for the personal question. But with reference to comments which have been made on the subject of the publication itself, it appears to me that there has been a good deal of misapprehension, and therefore I hope I may be allowed to say a word or two to clear up the matter. I believe that the popular impression out-of-doors is that we published communications which were never meant to be otherwise than confidential, and very naturally the public exclaims "What a monstrous thing to do." But, my Lords, were those communications private and confidential in the ordinary sense of the word? No. If they were of that character, they would have formed part of the private correspondence of the noble Earl who preceded me in the Foreign Office, and would have been taken away with his other private correspondence. But that was not the case. They were received at the Foreign Office as coming to the Secretary for Foreign Affairs; they were registered, and they went through the usual routine observed in the case of all letters sent to the Department. They were letters on public business addressed to the head of a public Department from a person holding an important public position. Those letters form the only reference to an important transaction which we thought it essential the public should be made aware of. They are five in all, and I may mention that two were not marked with any words indicating a private or confidential character, but let me remind your Lordships—though I scarcely need remind any one who has had any experience in public affairs—that the confidential nature of a publication is in nine cases out ten a matter of time. If, as Foreign Secretary, I were made aware of some European event which was going to occur in three or four months, it is possible that the information would be given to me in a letter or despatch marked "confidential," or "private," or "secret." It would, of course, be necessary to regard that communication as confidential for the time; but it does not follow that when the events referred to in such communications
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  have occurred, and when the reason for secrecy is at an end, there may be any reason whatever why they should not be made public by being laid on the Table of both Houses of Parliament. I do not wish your Lordships or the public out-of-doors to be under the impression that the Papers referred to by the noble Earl were published without valid reasons. They were the only reference to what undoubtedly was a very important public transaction—namely, the offer made to our Predecessors in office for the purchase of the Suez Canal. I ask your Lordships to consider how much heavier would have been our responsibility and what would have been the nature of the inferences which would have been drawn if it could have been said that while we purported to give to Parliament the whole of the Papers having reference to the Suez Canal, we suppressed a portion, and that the most important portion of all—namely, that which contains the fact that an offer had been made to our Predecessors, which they had not thought fit to accept. I think the inference to have been drawn from that would not have been of a very agreeable character. I sum up the matter in this way—In the first place, the letters were not private letters in the ordinary sense of the word; they were communications addressed to a public Department. In the next place, they were confidential at the time they were written and received; but it was for the Department in which they were registered to exercise its own discretion as to whether in five years after the whole matter to which they referred was at an end their confidential character should be maintained. If the gentleman who was so much mixed up in the matter has been in any way injured by the appearance of these documents in print I very much regret it; but looking through them since their publication with a care which I did not give to them before they had been published, I do not see anything in them which is in the least discreditable either to the writer of those communications or to the gentleman on whose conduct they comment. I cannot see anything in them in the slightest degree injurious to the character or to the interests of Sir Daniel Lange or M. de Lesseps, and though I regret the inconvenience which may have resulted from their appearance, I must repeat that I think we should have incurred

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  a heavier responsibility and exposed ourselves to grave censure if, instead of having published these communications we had suppressed them altogether.
  EARL GRANVILLE: I regret it if I should be putting your Lordships to any inconvenience; but I do not think the practice which was established last year of not allowing a reply to a Member of your Lordships' House who has merely asked a Question, will be held to apply in the present instance; but if it should be I will put myself in Order by making a Motion. Two things in the noble Earl's reply have given me satisfaction. He for one disclaims the system on the part of a Government which, when they are called on to answer for something they have done, leads them to throw the responsibility on third parties—whether ex-Ministers or others. I am also obliged to him for saying that he did not think I was bound to make any observations on the Papers submitted to me. At the same time, it occurs to me that perhaps the noble Earl left on your Lordships' minds the impression that he thought it was a pity I did not make some observations on those Papers. I am, therefore, anxious to make one or two further observations. There is an official in the Foreign Office called a précis writer. It used to be his duty to make a précis of all Papers coming to the Foreign Office which an outgoing Secretary of State might take away with him. That practice was found to be very inconvenient; and when the Foreign Office took to printing almost all the documents, the duty fell to the lot of the précis writer. He is bound to collect all the documents which had been printed and to give them to the retiring Minister. It happened that when I was leaving the Foreign Office Mr. Harvey, the précis writer, with a friendly feeling, and no doubt acting also in the discharge of what he felt to be a duty, claimed those particular Papers for me and sent them to me. I may remark, also, that all the Papers which are printed are not printed for publication. The papers which are printed on blue paper and marked "confidential," are those which are printed for the use only of the office—such was the print which I hold in my hand, and which was forwarded to me. Mr. Harvey wrote to me and said he had made this claim on my behalf, and was
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  told that the noble Earl (the Earl of Derby) said that as Mr. Harvey claimed those Papers for me he was to have them; but it was clearly to be understood that it was not Lord Derby who sent them. So far, therefore, from the noble Earl sending the Papers to me for my observations as to their publication, if what I have stated to your Lordships had any meaning at all, it must have been to remind me that I had no locus standi. I read them, certainly—not for the purpose of revising them for the Foreign Office, but to see whether they went against my own recollection, which was that no definite proposal to purchase the Suez Canal had ever been made to me. In mentioning the matter to my noble Friend Lord Hartington I alluded to the message sent with those Papers; and I then said to him—"There is something in these Papers which it strikes me ought not to be published. It does not appear to me to refer to the question of the purchase of the Canal, and I should like to mention it to the Secretary of State." It was exceedingly awkward for me to do this, and I felt it to be so. I wrote to the noble Earl, but I gave my note a particular and unusual heading. I headed it "Personal and confidential," meaning thereby to show that I wrote to him, not as Secretary of State for Foreign Affairs, but as a personal Friend. I hope the Earl has always regarded me as a personal Friend and that he will always find me one. I think I pointed out to him that the Paper to which I referred in my letter was not one which affected, either for or against the affair of the purchase of the Canal shares. Again, with regard to the Correspondence, I remember one thing—that a letter which was not sent to me at all, but which appears in page 167 of the Correspondence, was more likely to give offence to M. de Lesseps and his colleagues than any of the other letters. I beg your Lordships to remark that the noble Earl says Her Majesty's Government would not have been justified in keeping from the public the offer made to us and declined. Now, I say that Sir Daniel Lange did not make us any offer. He gave us private information as to the probability of such an offer being made; but there was no such offer. I remember, however, that almost as soon as we heard of the purchase of the Suez Canal shares, I was told by friends

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  —by both Conservative and Liberal Friends—that the Government would make a great point of their having been prompt in a matter in which we had shown ourselves to be dilatory. These rumours have proved not to have been without foundation, for, if I am not misinformed by the public Press, at the beginning of the debates on the subject in "another place" the Prime Minister said to Mr. Gladstone—"It is quite clear from your speech that you would not have bought the shares." Therefore this correspondence may be supposed to bear on the possible controversy between the present and the late Government. Well, the noble Earl wrote me a kind letter, in which he thanked me for the suggestion I had made, and said he would act upon it. But if I had suggested that it was desirable to omit certain parts of the correspondence selected for publication, would he not have said, "Why, he is afraid of this being published!" It may be said that I ought to have referred to the letters which are the subject of this discussion as being marked private and confidential; but I never anticipated that the noble Earl would say that it is a defensible thing for the Department to publish without the permission of the writer letters marked "private and confidential," and containing, not an offer, but the mere gossip of an offer—to erase "private and confidential" and make such letters public without the permission of the writer. I really think, my Lords, that I have stated enough—perhaps too much—to show that I am utterly without responsibility in connection with the publication of these letters, and that Lord Hartington in making that statement last night was perfectly justified.
  THE EARL OF DERBY: I do not want to prolong this discussion, but in respect of the message which the noble Earl says he received with the Papers, I must say there was no such message from me. There must be some misapprehension on the part of my noble Friend. I apprehend that what happened was this—Some communication passed between the gentleman referred to by the noble Earl and a permanent member of the Foreign Office Staff. I repeat that I sent no such message.
  EARL GRANVILLE: I have perfect confidence in Mr. Harvey and I have
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  perfect confidence in the Private Secretary of the noble Earl also. But I have it in writing from one of those gentlemen that the claim was admitted as Mr. Harvey had made it, but Lord Derby wished it to be clearly understood that the Papers were not sent from him to me.

  RECEPTION OF FUGITIVE SLAVES—THE CIRCULARS—INSTRUCTIONS.—PETITION.
  VISCOUNT CARDWELL: My Lords, I rise to present a Petition from the General Body of Protestant Dissenting Ministers of the Three Denominations residing in and about the Cities of London and Westminster, praying for the immediate and unconditional withdrawal of the Instructions recently issued by the Lords of the Admiralty to Commanders of Ships of War. My Lords, the Petitioners are well known to your Lordships as persons of great intelligence and I may say of historical celebrity. They are not members of the National Church, but they have always exercised great influence in every question which has touched the religious feeling of the country, and their voice has been always heard when anything affecting the general sentiment of humanity has been agitating the public mind. They pray for the unconditional withdrawal of the Instructions recently issued to the commanders of ships of war; and they pray thus not on the grounds of law, but on the grounds of humanity and policy—because they regard these Instructions as at variance with the principles of the British Constitution, which are the principles of freedom, and as opposed to the dictates of humanity. My Lords, in bringing this Petition under the notice of your Lordships, I shall not ask you to enter into questions of controverted law. Policy is what I ask you to consider. My Lords, as to the policy of this country and its objects in respect of the slave trade there can be no question, and that policy was never better expressed than in the gracious Speech from the Throne at the beginning of this Session. In that gracious Speech it is stated—
  "The humane and enlightened policy consistently pursued by this country in putting an end to slavery within her own dependencies, and in suppressing the slave trade throughout the world, makes it important that the action of British national ships in the territorial waters

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  of foreign States should be in harmony with these great principles."
  "I have, therefore, given directions for the issue of a Royal Commission to inquire into all treaty engagements and other international obligations bearing upon this subject, and all instructions from time to time issued to my naval officers, with a view to ascertain whether any steps ought to be taken to secure for my ships and commanders abroad greater power for the maintenance of the right of personal liberty."
  Now, my Lords, the question which I submit to you is this—Are the Instructions to which the Petition refers in harmony with that statement in the Queen's Speech? That passage in the Speech from the Throne announces that a Royal Commission is about to be appointed. And what is that Royal Commission to do? Not to find for us a policy, for England in respect of slavery has no need to seek for a policy, but with the purpose of ascertaining what is the best mode of carrying our policy out. Will those Instructions conduce to that end or not? The first question that presents itself to one's mind is this:—Is it consistent, is it natural, to appoint a Royal Commission to inquire into all treaty engagements and other international obligations bearing on the subject, and all Instructions from time to time issued to naval officers, and at the same moment to lay down positive Instructions on which these officers are to act? If those Instructions had been an exceptional regulation—if they had been framed to meet a particular difficulty—if at some particular place there had been some great pressure, or if there had been some urgent necessity for terrible haste—one could understand the framing of such Instructions pending the inquiry and Report of the Royal Commission; but these Instructions are general, their application is universal, and it cannot be said that the occasion which is said to have called them forth was very pressing, seeing that the note from India remained in the Foreign Office more than 12 months before the issue of the first of those Slave Trade Circulars. When you have recourse to a Royal Commission you thereby acknowledge that your mind is not made up, or that you are in search of enlightenment and instruction. Why, then issue Instructions which are not confined to ships in the Persian Gulf, but apply to all Her Majesty's ships,
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  whether in territorial waters or on the high seas? Are these orders to be regarded as a convenience to experienced naval officers? Have your Lordships ever heard of such expressions as these from an experienced naval officer?—
  "He heard with great regret that explanations or involved instructions had been drawn up, which would do away with the clear notion held by naval officers up to the time of the issuing of the recent Circulars. If it had been necessary to issue special instructions with regard to India, the Persian Gulf, and Zanzibar, they might have been of a local character, and applicable only to each particular case.…He hoped that the operation of the Circular would be postponed, that the subject would be referred to a Royal Commission, and that naval officers would be allowed to act, as they had done for 37 years, without producing any international complication."
  It is, in fact, "darkening counsel by words without knowledge" to issue this Circular when you are appointing a Commission to inquire what the Instructions should be. My Lords, I have not entered, and I shall not enter, into any question of law. Those Instructions have been drawn by a master hand, and I am not going to assert that any fault could be found with them as directly infringing on the principles of International Law: but, my Lords, I am bound to say that the policy embodied in those Instructions is not the policy of the country, and that it is not the policy of this country to maintain them. What is International Law? It is not, like municipal law, altered by the debates or even by the Acts of Parliament. But it is not stereotyped. It grows, occulto velut arbor œvo. It is the consensus of civilized nations, and it becomes more beneficent, as civilized nations advance in civilization: and it is our duty to be ever in the van, promoting by our example, our influence, and our authority, that advance; and had we been as free at the beginning of the century as we now are to exercise this power, International Law would have been in a more advanced position in respect of slavery than it is at this moment—far more favourable to the slave and far less fettered by technical distinctions and difficulties. But the country has done much. It paid millions to redeem the slaves in its own Colonies; it has made great efforts to suppress the slave trade; and, following its example, two powerful nations—the United States of America and the Empire of Russia—

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  have abolished slavery in their dominions; and the object of the Royal Commission must assuredly be to point out the way in which the greatest progress can be made to establish freedom throughout the world. The time is therefore one of special importance, offering peculiar opportunities for the successful promotion of our beneficent policy. But what are these Instructions? It may be said that they are only for commanders of vessels in territorial waters. But that is a mistake. They deal with the open sea—and I object to the way in which they deal with the open sea. Did any one ever before hear of any distinction between a slave and a free man on the open sea aboard a British ship? For the first time that I know of those Instructions introduce that distinction. They contain this passage—
  "When any person professing or appearing to be a fugitive slave seeks admission to your ship on the high seas, beyond the limit of territorial waters, and claims the protection of the British flag, you will bear in mind that, although Her Majesty's Government are desirous by every means in their power to remove or mitigate the evils of slavery, yet Her Majesty's ships are not intended for the reception of persons other than their officers and crew. You will satisfy yourself, therefore, before receiving the fugitive on board, that there is some sufficient reason in the particular case for thus receiving him."
  Now, with regard to territorial waters, what is the British officer told to do?—
  "Within the territorial waters of a foreign State you are bound, by the comity of nations, while maintaining the proper exemption of your ship from local jurisdiction, not to allow her to become a shelter for those who would be chargeable with a violation of the law of the place. If, therefore, while your ship is within the territorial waters of a State whore slavery exists, a person professing or appearing to be a fugitive slave seeks admission into your ship, you will not admit him, unless his life would be in manifest danger if he were not received on board. Should you, in order to save him from this danger, receive him, you ought not, after the danger is past, to permit him to continue on board; but you will not entertain any demand for his surrender, or enter into any examination as to his status."
  Now I say that this is not a matter of law but of policy. The assertion you make in that article of the Instructions admits that you are asserting rights of your own, in which you are perfectly independent of any obligation to any other nation: the concession that you
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  make, therefore, is a voluntary one. It does not speak the voice of the British people, and you had no right to make it. It is at variance with the spirit of British policy, and cannot be approved by the British Parliament. The British officer is not to admit the slave on board his ship unless the life of that slave would be in manifest danger if he were not so admitted. Is that a humane policy? There may be other reasons which would be as important as the question of life. There are many other dangers which are more likely to happen to the slave than that of having his life taken by his owner. It is not, perhaps, often that a slaveowner desires to take the life of his slave; but there are things which even the slave may prefer to life itself. I read lately of a dreadful massacre in Cuba that was caused by an attack on the honour of a woman. Is it deliberately intended in a case in which a wife says—"My honour has been attacked," and in which the husband says—"Cruel chastisement awaits me for resistance to that attack," that the commander of a ship should say—"A short time ago I might have interfered to save you; but now I cannot receive you, because your life is not in manifest danger, and I have received new Instructions drawn up by the highest authority, by the Cabinet of the Queen, which peremptorily prohibit me?" Take the ease of political offenders. Would you venture to incorporate in your regulations as to political refugees these Instructions which you have issued in the case of slaves? If Poerio had made his escape from the Neapolitan prison would you have had any British commander say to him that he would not receive him because his life was not in manifest danger? What harm would any one suffer if the prayer of this Petition were acceded to and those Instructions were withdrawn? If the country were to awake to-morrow morning and find that they had been withdrawn would any one be the worse? Would the Government be the worse? Would it be displeasing to their supporters? Mr. Pitt used to complain of Mr. Wilberforce that he would only support him when he was in the right; but he wanted his support most when he was in the wrong. The present Government have better supporters than Mr. Wilberforce. They have just given that most indisputable

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  proof of a strong Government, a large majority composed of most reluctant supporters. He found that one of those who usually acted with them, though he could not give his personal vote, was reported to have used this language in the other House of Parliament—
  "They were all of one opinion that slavery was a bad thing; but if there was a division party organization would come into play, the Liberals would go into one lobby and the Conservatives into another, and the impression would consequently get abroad that the Liberals were the friends of the slave, and the Conservatives his enemies. Now, he had a strong objection to being placed in a false position. He did not want to argue this question on potty considerations. They had had rather too much of that lately. Let them try to decide so as not to be hard on the slave nor uncivil to their neighbours. The truth was, they were all of one mind; they all wanted to do the same thing if they could only find a clever fellow to teach them how to do it. He thought the Government was in danger of finding itself in a false position. They had issued the Circular, and now they were going to appoint a Commission, the meaning of which was that they wanted more information. Well, if information was wanted, let them suspend the Circular. They issued the Circular, although they were in want of information. That was a dilemma out of which he should be glad to hear the ingenious Prime Minister extricate himself. He knew he was on dangerous ground, but he must say that there were a good many men on that side of the House who did not like that business, and who did not quite see their way to sanctioning the Circular. He did not wish to attach any blame to Her Majesty's Ministers. He believed they wanted to do what was right. But why should they not leave this matter to their Naval officers? He did not like the Circular. It had an ugly hard sound about it, and he could not see why it should not be withdrawn."
  Would the commanders of ships he the worse for the withdrawal of the Instructions? We know from their own statements that they would he in a better position. Would the Royal Commissioners be the worse for it? Certainly not, for they would pursue their inquiry in a fuller and a broader light without the darkening shadow of the Instructions. Would the British Crown be the worse for it? No. By having these Instructions withdrawn they would advance the cause of freedom, which we all have so much at heart, and clear the way for making International Law on this subject more in accordance with the doctrines which it has been our pride to see this country uphold. I believe that if the Government would accept the prayer of this Petition they would gratify their own supporters, they would facilitate
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  the efforts of British commanders, they would elevate the honour of the British Crown and greatly advance the cause of freedom, which is dear to men of all parties in this country.
  THE LORD CHANCELLOR: My Lords, I cannot express any surprise that the noble Viscount (Viscount Card-well) should have taken this opportunity of bringing before your Lordships a subject which has deeply entered the public mind; I should not have been surprised if it had, even at an earlier period, occupied your Lordships' attention. And I am free to admit that no body of men could with greater consistency and greater propriety present themselves as Petitioners to your Lordships' House to make their view of the subject known than those whose Petition has been presented by the noble Viscount. But, my Lords, we must bear in mind that there are more questions than one which have to be considered with reference to the prayer of this Petition. My noble Friend has touched upon those in succession, and I am going to follow the lines which he has marked out. But, my Lords, I only request one thing of your Lordships—that the different points to which he has adverted may be kept perfectly distinct. The noble Viscount raised the question first of all—"What is the need of Instructions at all?" He has raised the question also—"What is the character of the Instructions which as an act of administration ought to have been issued?" And he has raised a third and, I think, a larger question than either of the first two—"What is the policy which this country ought to pursue in a matter deeply connected with that abolition of slavery which we all desire." I will take each of those questions in succession.
  First, my noble Friend suggests—"Was there any necessity for the issue of this Circular?" My Lords, the question is very easily answered. The Indian Government—the Governor General of India and his Council—informed Her Majesty's Government of these very important facts. They told Her Majesty's Government that the necessity had arisen for distinct Instructions to be given on the subject to the commanders of Her Majesty's ships; and they told Her Majesty's Government—what was more important—that they themselves had issued Instructions which

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  would remain in force till the final Instructions should have been issued by Her Majesty's Government. Let me remind your Lordships what our Resident in the Persian Gulf said—
  "4. I would respectfully suggest that in the present state of the Slave Trade question it would he satisfactory to have some definite instructions from Government as to what class of slaves are entitled to receive protection on board British ships, as in both the cases mentioned in this letter the slaves who received protection seemed, without doubt, to come under the head of domestic slaves, and if domestic slaves are allowed to receive protection on hoard every English ship they come across, the owners will he great losers, and the pearl fishing will come to a standstill, as nearly all the divers belong to that class."
  That was the view taken by the Resident of the Persian Gulf. But the noble Viscount asks why was it necessary to go beyond the locality—the Persian Gulf—in laying down rules? It was for this reason—that it is in that locality and along the Eastern Coast of Africa, almost in the same neighbourhood, that the whole or nearly the whole question as regards the slave trade arises. But there was this more important consideration for the Government. I will not trouble your Lordships by examining the Instructions issued by the Indian Government; but when they came to be examined by us, it was perfectly obvious that they were Instructions which could not be maintained. Under these circumstances Her Majesty's Government considered they had no option but to issue, as a matter of administration, a Circular that could be maintained. I need not say that no Department would have desired, except under the pressure of absolute necessity, to codify all the Circulars and Instructions on the subject; but the Government felt that they would be shrinking from their duty if, while being of opinion that the Indian Instructions were such as could not be maintained, they did not respond to the request of the Indian Government.
  I now come to the second question—"What was the character of the Instructions which, as an act of administration, it was right for the Government to issue?" And I will ask your Lord-ships to keep that question entirely free from the question of policy—from the consideration of what, if our hands had been free, was the policy in this matter which we should have desired
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  to have pursued. I conceive that the first duty incumbent on us in answering this question is thoroughly to understand the principle on which the freedom of public ships is regulated by International Law. The noble Viscount points out that the Circular to which he has referred treats not merely of the position of ships in territorial waters, but also of the position of ships on the high seas. I must say a word or two as to that part which treats of the position of ships on the high seas, because it has been greatly misapprehended. I am not sure that I caught correctly the objection that the noble Viscount took to it, but as I understood him it was that, as regards ships on the high seas, the Circular threw upon the commander the duty to discriminate as to whether the person claiming protection was a slave or not. I am surprised that there should be any question on that point. The provision is in favour of the person escaping from slavery. The object is to point out to commanders of Her Majesty's ships that it is not sufficient merely to receive the slave on board and give him the protection of the British flag for the moment, but that his duty is not discharged unless he keeps the slave on board or puts him on shore at a place where his liberty will be respected. That is the object of that portion of the Circular.
  I pass from that, and come to what is a more serious question—"What is the position of public ships in the territorial waters of a foreign State?" The noble Viscount refers to the question of International Law. I will say this for International Law—there is no mystery whatever about International Law. It is simply a matter of common sense, and everyone of your Lordships is just as competent to judge of a principle of International Law as a Lawyer is. There is no magic about it; there is no technical procedure. It is simply a question to which the common sense of anybody may be applied. Now, I will state to your Lordships what I conceive to be the position of a public ship in foreign territorial waters; but I wish to say that, as far as I am concerned, I am as anxious as anyone can be to maintain the complete exemption of our national ships from foreign jurisdiction. There is no country in the world so much interested in that doctrine as Great Britain, and I am anxious to maintain it to its fullest

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  extent. But, my Lords, another doctrine has been raised in the course of this discussion which I, at least, cannot give my assent to. This is the doctrine which has been called the doctrine of extraterritoriality; and when that doctrine comes to be interpreted it is represented to be this—that a national ship is a part of the land of England, and that where-ever she goes she carries with her so much of English land, with all the consequences which may attend it. My Lords, I must beg leave to doubt the accuracy of that proposition. I believe it to be a metaphor, and I believe it to be a metaphor eminently calculated to mislead. Let me ask your Lordships to subject that doctrine—for you will find it has a very important bearing—to one or two very simple tests. It is said that an English public ship, wherever she goes, is part of the English soil. Now, remember that whatever is the position of a ship in this respect, exactly the same is the position of the Ambassador's house. The same protection which is thrown around a public ship of war is thrown around also the residence of an Ambassador in a foreign country. I should like to ask of those who maintain that a ship is part of the English soil this question—If a child of foreign parents were to be born on board an English national ship in a foreign harbour or in the house of an Ambassador, would that child be born within the allegiance of the Queen of England? I should like to ask another question. Suppose that in the Bay of Bio Janeiro, and on board one of our public ships, a marriage were to be solemnized between two Brazilians which was valid according to the Brazilian law, would it be invalid because ceremonies required by the English law were not performed? I apprehend no person can maintain any such doctrine. But I will ask another question. Suppose that in an Ambassador's house an assault were to be committed by one foreigner upon another, or a murder were to be committed by one foreigner upon another, will anyone contend that that is a subject for the jurisdiction of the Courts of England, or that because the Ambassador's house or a ship is English soil, the Courts of the country are not the proper Courts to have jurisdiction? Your Lordships will find this to be of so much importance that I will take the liberty of asking you to allow me to read
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  one extract from one of the authorities on this subject. Mr. Dana, in a note to Wheaton's works, says—
  "The subject of diplomatic immunity of person and place has been obscured by the use of the phrase 'extra-territoriality.' Treating this figure of speech as a fact, and reasoning logically from it, have led to results of an unsatisfactory and impracticable character.… A clear understanding of these questions requires that the phrase should be treated as a figure of speech, and not a fact from which inferences can be drawn. The true test is one lying behind and clear of that illustration. The whole subject depends upon this principle—the convenience of nations."
  That I think will suffice for authority across the Atlantic. I will venture to quote from an author at home, and I am glad to use the authority of a learned friend of mine, a colleague of mine upon the Bench—one whose judgments and whose writings upon International Law I will venture to say reflect honour upon this country—I mean Sir Robert Phillimore. What does he say? He asks—
  "Upon what grounds is this exemption allowed? Not upon the possession on behalf of the Sovereign in virtue of his sovereignty of a right to this exemption; such a right on his part would be incompatible with the right of the territorial Sovereign; and not as it is sometimes carelessly said, upon the ground that he and his property are to be considered as still remaining in his own territory. This is, indeed, the fiction of law expressed in the term 'ex-territoriality,' by which the nature of the immunity is illustrated; but it is illogical and inaccurate to consider it as the ground of that immunity."
  It is in the knowledge of many of your Lordships that a practice prevailed in the last century, of treating an Ambassador's house as a place of refuge, as an asylum, upon the notion that it had some peculiar sanctity, as so much of the land to which the Ambassador belonged, but the practice has been long since reprobated by the common consent of all nations. I have seen this doctrine as to extra-territoriality supported upon the authority of one who is said to be a most distinguished jurist, as well as an able, practical sailor—namely, M. Ortolan. It is always an unfortunate course, to take and roll two men into one. The distinguished jurist M. Ortolan is not a sailor, and the distinguished sailor M. Ortolan is not a jurist. They are brothers. They are both very eminent in their way, but with regard to the sailor I must take the liberty of saying that, although he has written a book of extreme ability and of very great interest, there are many propositions

  1517
  in it which I think it would not be quite safe to rely upon, one of these being the same proposition which has been so much alluded to—that every national ship is so much of the ground of the country which she comes from. But even M. Ortolan, when he comes to consider cases which may arise on board ship, finds that his own doctrine requires to be considerably modified, and this is the view which he takes in that case. He says—
  "We must also remark the striking difference which in reality exists between the territory of a State and the deck of a ship moored in the waters of a foreign Power. The confined space of the ship, the small population it carries, its limited means of providing for this population, the necessities, so multiplied and rigorous, of its discipline and service, all these prevent any comparison, as regards the introduction of a stranger, with the case of a real territory. To this consideration, if we add that when a ship of war is in the port or territorial waters of a foreign State, it is really within a district subject to the ownership or sovereignty of that State; that if, in its character of a ship of war, it then enjoys an absolute immunity, this immunity cannot be claimed as a personal right by refugees on board; that if it is true that these refugees are on board, it is true also that they are still in the port or territorial waters of those to whose coercive power they are amenable—we must conclude from all these observations, while we maintain the inviolability of a ship of war, over which the local authorities have no control, that the refugee who has taken shelter is not absolutely in the same situation as if he had taken refuge in the territory of the State to which the ship belongs."
  I trouble your Lordships with these observations because it is very much better to disembarrass the case of the comments that have been made in many quarters, and which have attracted considerable attention. Now what is the real reason why you maintain that a ship of war has peculiar, exceptional privileges in the territorial waters of foreign Powers? I apprehend that reason is clearly and distinctly this—that a national ship enters the territorial waters of a foreign Power subject to two implied engagements. I say implied engagements, because they are engagements which may be modified, which may be altered, but which cannot be altered without distinct notice. One is an engagement on the part of the Power whose waters she enters that she and all those on board of her shall be free from foreign processes; and the other is an implied engagement on the part of the ship that she will neither herself violate
  1518
  nor aid those who desire to violate the law, whatever it may be, of the foreign State. Your Lordships will then, I think see the importance of bearing in mind these principles when we come to speak of the policy of this country. Mr. Justice Story says—
  "In the case of the Exchange the grounds of the exemption of public ships were fully discussed and expounded. It was there shown that it was not founded upon any notion that a foreign Sovereign had an absolute right, in virtue of his Sovereignty, to an exemption of his property from the local jurisdiction of an other Sovereign, when it came within his territory; for that would be to give him sovereign power beyond the limits of his own Empire. But it stands upon principles of public comity and convenience, and arises from the presumed consent or licence of nations, that foreign public ships coming into their ports, and demeaning themselves according to law and in a friendly manner, shall be exempt from the local jurisdiction.…. It would indeed be strange if a licence implied by law from the general practice of nations for the purposes of peace should be construed as a licence to do wrong to the nation itself, and justify the breach of all those obligations which good faith and friendship, by the same implication, impose upon those who seek an asylum in our ports."
  My Lords, I apprehend that is a principle founded upon common sense. There is no obligation on the part of a ship of war to go into a foreign port, and there is no obligation on the part of a foreign State to admit a ship of war into its ports, except upon the terms which are implied by International Law; and until something is done to alter these terms they are conditions upon which, according to International Law, ships of war shall enter foreign ports. I should like, with your Lordships' permission, to add one further authority—which, I think, is a very important one—to those I have already mentioned. I have no doubt that your Lordships have read, as I have often read, with the greatest interest the letters upon International Law which have appeared in The Times, bearing the signature of "Historicus." I am relieved from the trouble of surmising who is the author of those letters, because I find that in the Report of the Naturalization Commission the curtain is drawn aside, and that it is stated in the appendix that the name of "Historicus" represents Sir William Harcourt. I know of nothing connected with those letters of which Sir William Harcourt may not well be proud, and all the letters which have appeared

  1519
  under that name will, I believe, take their place in future treatises on International Law. I am going to take the liberty of referring to one of those letters, which certainly deals in the closest way with the question which we are now considering. What is the view which Sir William Harcourt takes as to the present state of International Law on this question?—and I beg your Lord-ships to observe particularly that my observations at this moment are limited to that point. As to the present practice of this country with reference to the obligations which are imposed upon ships of war in foreign ports, Sir William Harcourt says—
  "It may be said this is all very well in law, but in practice are public ships to go about to foreign ports, and then, having accepted their hospitality, to render themselves public nuisances? Certainly not. No one contends that a ship of war is to hold itself out as an asylum for foreign runagates from justice, or even from slavery. A captain should not make his ship a receiving-house for fugitive slaves any more than for runaway criminals or smugglers, or stolen goods. I should imagine that a man fit to command a Queen's ship does not need to be told this. The Admiralty Regulations already contain an injunction as to the conduct of captains in foreign ports, amply sufficient to warn them against conduct which may give umbrage to the Government or the people of the place where they anchor. If any further Instructions were required (which I greatly doubt), they should have been exactly the opposite to those given in the Circular; instead of ordering the slaves to be surrendered after they had been received, the direction should have been not to receive them, because they could not be surrendered.…What the captain has a right to do, and ought to do, is to give instructions to the officers of the watch and the sentry not to admit any person on board his ship whose reception he has reason to think will give offence to the authorities of the place where he is lying. This is a duty, not of law, but of courtesy…No one has any right on board a Queen's ship, whether in an English or a foreign port, without the leave of the captain. He has entire right to determine whom he will receive, or exclude, or remove. The objects for which a man-of-war exists, and the necessities of discipline, require this. He has, therefore, a right which would not exist in ordinary cases on shore to forbid access or to order the removal of strangers. The ship of war is like a fortress; it repuires no Alien Act to authorize an exclusion from it."
  My Lords, I cannot pass by that letter without observing that it appears to have excited "elsewhere" a good deal of attention; and, if I remember aright, the author of it said that he regarded the letter himself with the greatest interest, because it had appeared only 24
  1520
  hours before the Government withdrew the first Circular. Had that been the case, it would certainly have been a remarkable circumstance; but I must say that I think it important that, where circumstances are remarkable and may perhaps become the foundation of future history, we ought to endeavour to narrate them as accurately as we can. The memory of Sir William Harcourt is not strictly accurate in this matter. It is quite true that there was a lapse of 24 hours between the withdrawal of the first Circular and the publication of his letter; but the withdrawal of the Circular came first, and it was not until 24 hours afterwards that his letter appeared. The Cabinet met on the 4th of November and it was then determined that the Circular should be withdrawn. The notice that the Circular was withdrawn was circulated on that day, and that notice appeared in the morning papers of the 5th of November, together with the letter of Sir William Harcourt. It is none the worse letter for that; but, at all events, it was not the cause of the withdrawal of the first Circular.
  But I pass from that point, and I now proceed to ask your Lordships this question—supposing that these authorities to which I have referred are accurate, and supposing that the view put forth in the letter of Sir William Harcourt is accurate, I do not ask on what we should endeavour to shape our policy in the future on this question, but I do ask, what is the limit which is to restrict the active administration of a Government that desires to act by the law as it stands at the present time? I apprehend that such a Government has one of two alternatives before it. It has the alternative, if it receives slaves on board its ships in territorial waters within the jurisdiction of slave-owning States, of being called upon to surrender them; or it has the alternative of refusing to receive slaves on board its ships under such circumstances, lest it should be called upon to surrender them. In my humble judgment Her Majesty's Government chose the right of these alternatives, and not the wrong, when they determined that we should not receive slaves on board our ships in such circumstances, because we could not submit to surrender them. This question does not turn upon the dry subtleties of International Law. The Government, in endeavouring to ascertain

  1521
  what should be the nature of the Instructions it was bound to issue, had to take as its guide not merely the rules of International Law, but our own engagements with foreign countries and the practice of past years. In speaking of our engagements with foreign countries I am not referring merely to our treaty engagements; in fact, I am not referring to the treaties we have entered into at all, but to the representations and to the promises which we have held out on this subject to foreign Powers. I am going to refer your Lordships to the Instructions which have for many years been issued to the captains of Her Majesty's ships. I do not say that it may not be right in the future to limit and to qualify those Instructions, but I wish to point to them as they stand at the present and have stood during the last 30 years, during which time the noble Viscount says the conduct of this country on this question was entirely satisfactory. Those Instructions are as follows:—
  "The captains of such of Her Majesty's ships as visit foreign ports or places are to take especial care to avoid all possible cause of offence or dissatisfaction to the official authorities, or to the in habitants; and they are to cause all those under their orders to show due deference to the established rights, ceremonies, customs, and regulations of such places, and to conciliate, as far as possible, the good-will and respect of the inhabitants."
  Now, my Lords, I ask your Lordships, what does that Instruction upon which out captains have hitherto been ordered to act require from them? Does it require them, when their ships are in the harbours of domestic slave-owning States, to hold out their ships as refuges open for fugitive slaves? I maintain that it is impossible that such a course of action would be sanctioned by this Instruction. But that is not the only Instruction which has been issued on this subject. Let us look at the Instruction that was issued during the Government of one who has certainly thoroughly understood the feeling of this country on the subject of slavery—I mean Lord Palmerston. This was the Instruction that was issued by his Government—
  "You will endeavour to make engagements for the suppression of the slave trade with those native chiefs on the coast of Africa with whom no such engagements are subsisting."
  Now, what is to be the inducement held out to these slave-holding States for entering
  1522
  into these engagements?—because it must be borne in mind that we are entering month after month, and year after year, into these engagements, founded on these Instructions, with the petty slave-owning States on the coast of Africa. The following is the Instruction on this point:—
  "You will impress upon the natives the earnest desire of Great Britain for the improvement of their condition, and will very clearly point out to them the distinction between the export of slaves, which Great Britain is determined to put down, and the system of domestic slavery, with which she does not claim to interfere."
  I say, change these Instructions for the future, if you like, but, as a matter of fair dealing, you must act up to them for the present. The noble Viscount said—"Look at your practice with regard to refugees; you have opened your ships to them, why should you not do so to the slaves? Why not put the slave at least as high as the refugee?" But the greatest and most important occasions when refugees are received on board our ships are when civil war is actually raging in their country, and then we receive them, not under the rules of International Law, but when the bonds of society are dissolved, and when the laws are silent in the midst of arms. What have been the Instructions given to commanders of Her Majesty's ships with reference to the reception of refugees on board their vessels? On the 24th of May, 1870, the Earl of Clarendon wrote to Mr. Thornton in consequence of an application which had been made to him by the Government of the United States in reference to a case of this kind, and his Instruction was one of great importance as affecting the position of British Ministers and Consuls in foreign countries relatively to the granting of asylum in consulates to political refugees. Lord Clarendon wrote as follows:—
  "Sir,—I have read your despatch, No. 103, of the 14th of March last, acquainting me that Mr. Fish had requested you to invite the attention of Her Majesty's Government to the difficulties which are constantly arising in certain Spanish-American countries, owing to the prevailing custom of granting asylum to political refugees in the houses of foreign diplomatic or consular agents in those countries, and stating that, with a view of putting a termination to this custom, Mr. Fish has suggested that the Governments of three or four principal countries, such as France and Germany, Great

  1523
  Britain and the United States, should combine in instructing their agents to refuse to receive refugees into their houses, and that they should take steps for causing these instructions to be made public. I have, in reply, to state to you that you were correct in informing Mr. Fish that you and other representatives of Great Britain in foreign countries had been instructed that the practice of granting an asylum to political refugees was considered to be highly objectionable, inasmuch as it must have a tendency to compromise the diplomatic agents and involve them in disagreeable discussions. These instructions must be strictly adhered to, but some discretion must be left to Her Majesty's Ministers and Consuls in urgent cases, where lives may be saved, not only at the moment, but by giving time for reflection to the victorious party. Her Majesty's Government are of opinion that the grant of asylum to political refugees, whether in British Missions or Consulates, especially in countries where its exercise is not complained of, should be made with extreme caution, but voluntarily to abjure the practice seems to them to be neither necessary nor humane.—I am, "CLARENDON."
  It is clear from this Instruction that at the date of Lord Clarendon's despatch there was no general or unlimited practice, as far as political refugees are concerned.
  But what are the facts with regard to fugitive slaves? Before entering upon this branch of the question permit me to say that it is not my intention to make any charges against previous Governments with reference to their conduct of these questions. I shall not do this, because I believe that these Governments have acted in the way they thought best calculated to promote the repression of slavery and to improve the condition of the slave populations in various parts of the world. In the Papers which have been laid before Parliament six cases relating to this particular question are mentioned as having occurred during a period of more than 30 years; and I would particularly ask your Lordships' attention to the number of cases and the length of time over which the occurrences extend, lest, owing to the fact that so few cases are mentioned, it should be supposed that no others arose. As matter of fact, these were the only cases which reached the point of what I may call "remonstrance," and I shall refer to them because, when a case of the kind is submitted to the authorities at home, and their opinion is pronounced, that opinion governs a large number of other cases which are not, and do not require to be, submitted to the Government for the pronunciation
  1524
  of opinions or decisions concerning them. I will commence with a case which occurred in 1837, when Lord Palmerston was Foreign Minister. In that year a negro slave escaped and got on board one of Her Majesty's ships (the Rodney) in Havannah. The captain of the ship restored the slave to his owner on demand made; and Lord Palmerston wrote to Her Majesty's Minister at Lisbon, and also to the captain of the vessel, expressing approval of the course which had been taken. The next case occurred in 1851, when a negro escaped from Brazil and got on board one of Her Majesty's ships. An inquiry was at once set on foot in order to ascertain whether the slave had been recently imported—and this was done because, in 1845, the Brazilian Government had entered into a Treaty under which they bound themselves not to import any additional slaves. The slave in question, having been imported later than 1845, was not surrendered for the reason that, by so importing him, the Brazilian Government had broken their Treaty; but if he had been imported before that date he would have been surrendered as being a domestic slave. The next case is one which came under the notice of Lord Clarendon in 1856. Two slaves having sought refuge on board a British merchant ship at Rio de Janeiro, Lord Clarendon ordered that they should be given up, remarking that if the men had got on board one of Her Majesty's ships of war the case would have been different. The third case to which I shall call attention shows the course taken by Her Majesty's Government in more recent times. In 1869 the Government of Mozambique complained that Captain Sulivan, of Her Majesty's ship Daphne, had received two domestic slaves on board, and, as the result of an inquiry instituted by Lord Clarendon, Captain Sulivan was censured; in addition to which Instructions were issued in order to prevent the recurrence of similar events. Those Instructions were couched in the following terms:—
  "Her Majesty's Minister for Foreign Affairs has decided that slaves coming on board ships of war within the territorial jurisdiction of the country from which they escape—that is to say, within three miles of the shore—should be returned to the owners."
  We had some conversation the other night as to whether the noble Earl who

  1525
  was lately Secretary of State for Foreign Affairs (Earl Granville) was acquainted with this decision; and the noble Earl stated that though he forwarded these Papers soon after his accession to office, he did not know what was contained in them—and indeed the noble Earl represented the matter as one of ordinary practice and routine. What is the inference to be drawn from this statement? If the course taken by Lord Clarendon was entirely new, is it not fair to assume that the noble Lord (Lord Hammond), whom I see seated behind the noble Earl (Earl Granville), and who was for many years permanent Under Secretary at the Foreign Office, would have informed the noble Earl, on his accession to office, as to the circumstances of the case, and would have asked him whether he endorsed the policy of Lord Clarendon? I take it that he would have done this as a matter of course if the whole transaction had not been one of routine. The next case is one concerning certain slaves who escaped from Madagascar in 1869, and got on board one of Her Majesty's ships (the Dryad). The Consul in that place, writing on the question as it arose at the time to the head of the Foreign Office, expressed himself as follows:—
  "The point which I have had to decide involves a very important question of right—namely, Whether the commanders of British cruisers are justified in receiving on hoard their vessels, in Malagasy waters, slaves escaped from the shore, and in granting to such slaves the protection of the British flag; and I shall, therefore, he glad to learn that my opinion that such right extends only to slaves introduced to Madagascar from beyond the sea since the conclusion of the English Treaty, and not to domestic slaves, is approved by your Lordship and held to he sound in a legal point of view."
  I now come to the case of the Nymph, in which it was complained that two slaves swam to the ship and had been taken on board and carried off. Well, Sir Leopold Heath presented his view of that matter to Lord Clarendon, and it was a directly opposite view; so that, in fact, Lord Clarendon had two contradictory views before him. Sir Leopold Heath said that—
  "Every man who put his foot upon English soil became ipso facto free, and that the deck of an English man-of-war was British territory; but that, as England waged war against the slave trade only, and not against domestic slavery, it was possible that compensation should he made to the owners of slaves escaping on board our ships and retained there."
  1526
  Now, these were two opposite opinions; and what was the decision of Lord Clarendon?—and when I say Lord Clarendon, I say so because he was at the head of the Department. But it was quite impossible that a despatch of that importance to the commanders of Government ships could be regarded as coming from him alone—it must have been approved by the First Lord of the Admiralty: and, in point of fact, we find that the Secretary to the Admiralty a day or two afterwards forwards the despatch, with the approval of the Admiralty, to its destination. It was not, therefore, a merely departmental decision of Lord Clarendon, but was the solemn decision of the Government of the day. And what does it say—
  "Foreign Office, January 6, 1870.
  "I am directed by the Earl of Clarendon to acknowledge the receipt of your letter of the 7th ult., enclosing a letter from the commander of Her Majesty's Naval Forces on the East Coast of Africa relative to the complaints preferred against the commanders of Her Majesty's ships Nymph and Dryad by the Hova authorities, with regard to their proceedings in carrying off and then liberating certain domestic slaves at Majunga, who swam off to those vessels to escape from their masters, and in destroying certain slave dhows at the same port, and I am to state to you in reply, for the information of the Lords Commissioners of the Admiralty, that Lord Clarendon conceives that the commanders of Her Majesty's ships Nymph and Dryad were not justified in sailing away with the slaves in question in the manner above set forth. The status of slavery being acknowledged and lawful in Madagascar, the Commander of a British ship-of-war is not borne out in depriving the inhabitants of slaves who are rightfully their property, and the owners of such slaves are plainly entitled to compensation from us for the losses incurred at our hands by their abduction. If a British cruiser were at sea beyond the territorial jurisdiction of Madagascar, and slaves on shore were to seize a boat to escape to the British ship, the case would be different, and we might then fairly decline to surrender persons received on board under such circumstances; it is, however, impossible to approve the conduct of Her Majesty's officers in cases like the present, the facts of which simply amount to the entry into the waters of a friendly Power of a British ship, and to her depriving the subjects of that Power of their lawful property. Such a course can, moreover, have no other effect than to indispose the natives and authorities towards us, and would in all probability tend to prevent their carrying out their engagements for the suppression of the slave trade."—(No. 21.)
  Now, my Lords, these are the cases before your Lordships. You have now heard what I consider to be, in the first

  1527
  place, the present view of International Law; in the next place, the character of the representations and engagements we have made with foreign countries: and, in the last place, cases which have occurred in practice at the Foreign Office. And your Lordships will bear in mind that, with regard to the most prominent of those cases, every one of them has led to communications of the decisions of our Government to the foreign Power—Portugal, Spain, Madagascar, as the case might be—conveying to them representations of the principles on which this country was prepared to act. I am not now dealing with policy, but with acts of administration, and I contend that if it was necessary for the Government of the day to issue Instructions, they took a course which was most in favour of the slave. They declined to follow the practice of surrendering the slave which has hitherto been acted upon, and adopted the milder and better alternative of not receiving, except he were in danger, a slave on board, lest it might raise the difficult and invidious question of whether they were bound afterwards to surrender the slave.
  But now, my Lords, I come to what in my judgment is a simpler and I also think a much more agreeable task. I come to consider the question—what is the policy which this country ought to pursue, and how she ought to pursue it. The noble Viscount did no more than justice to the Government when he quoted the passage he read from the most gracious Speech of Her Majesty. I desire, also, to advert to it as expressing the policy which on this subject Her Majesty's Government wishes to pursue. My noble Friend read the earlier part of the paragraph—
  "The humane and enlightened policy consistently pursued by this country in putting an end to slavery within her own dependencies, and in suppressing the Slave Trade throughout the world, makes it important that the action of British National ships in the territorial waters of Foreign States should be in harmony with these great principles."
  That is the policy which Her Majesty's Government wish to pursue. The Speech proceeds—
  "I have, therefore, given directions for the issue of a Royal Commission to inquire into all Treaty engagements and other International obligations bearing upon this subject, and all instructions from time to time issued to my naval officers, with a view to ascertain"—
  1528
  not what the law is; we do not want to inquire into that; not what the practice is, for the purpose of following that practice—what we want to ascertain is—
  "whether any steps ought to be taken to secure for my ships and their Commanders abroad greater power for the maintenance of the right of personal liberty."
  My Lords, if Her Majesty's Government were satisfied with the state of things now existing, they would not have placed those words in the mouth of Her Majesty, and they would not have issued the Commission. If we had been satisfied with the state of things which has hitherto prevailed, we had only to follow that state of things. But we were not satisfied with and we desired to alter that state of things, and, further, we desired to know how best and how safest that alteration could be made. But it is not for a Government, and it is not for a Department of a Government, on a great question of this kind, connected with and involving International Law—our relations with other countries—it may be involving the existence even of municipal law—it is not for a Government, or a Department of a Government, of itself to change its policy in a matter of this kind.
  My Lords, the noble Viscount referred to the history of dealings with slavery in this country, and he said with great truth that the practice and the law on this subject were not at any one moment to be stereotyped. I gladly repeat those words. My Lords, the history of the progress of this country in its dealings with slavery is about one of the most instructive and interesting histories that any person can peruse, and I ask leave to say that the progress of our action with regard to slavery is one of the highest glories of Christianity and of that civilization of which Christianity was the harbinger and the pioneer. Let me remind you of what it was. It is not much more than 100 years ago that one of the great public writers of Europe, to whose works at this day we still refer, announced it as his opinion as a matter of International Law that, however much the practice had fallen into desuetude, it was the absolute right of those who conquered in war to reduce the people whom they conquered into a state of slavery. About the same time—within a few years of it—we find one who filled with great lustre the seat I now unworthily

  1529
  occupy joining with another counsel nearly equally eminent, and pronouncing it as his and their opinion that if a slave came from Jamaica and settled in London, it was undoubted law that he might be kept in confinement and sent again to Jamaica. My Lords, what was the law laid down in Somerset's case? If your Lordships read the case you will find page after page of the most grave and solemn argument in support of slavery, and grave doubts expressed as to whether the decision which might be ultimately arrived at in the other view could be sustained. But the case was brought to trial under the auspices of Granville Sharp, and the negro was ordered to be set free. What have we next? The bombardment of Algiers, in 1816. That put an end to a system of slavery certainly as disgraceful as the slavery of the negro. And what next? That long chapter of history with regard to the slave trade, ranging from 1807 to 1842, gradually bit by bit developing itself and making progress; first rising into illegality, then swelling into piracy, then advancing into that which had been so long and strenuously denied—the right of search. What have we next? The abolition of slavery in our own colonies in 1833. What have you as the latest and greatest of all? In 1865 the termination of slavery in the United States. I am quite willing to believe, and I hail with pleasure the idea, that we have reached a new point of departure—perhaps the last in this great question. I believe that the principle which has been developing itself through all the years I have mentioned has not ceased developing itself yet; and it has been subjected lately to greater and perhaps final trials. My Lords, I own that, speaking for myself, I should be extremely glad if, preserving all the doctrines of International Law, we could reduce the question to this point—that with regard to every British ship before it is sent to foreign waters where slavery is permitted, we should be understood to hold this language—"You allow domestic slavery. We are not going to make war against it, nor shall we attempt to terminate it by force until the time comes when you relinquish it. We are not going to seduce or invite your slaves to leave their masters and come on board our ships; but we give you notice that, if one of your slaves comes to our
  1530
  ship, you are not to be deceived or disappointed, for, if he claims the protection of the British flag, that protection he shall have." That would be a frank and fair statement of what we intend to do. I have been much amused lately in reading a collection of papers which is to be found in your Lordships' library, but which is not of much practical importance now—I mean the Treaties we have made in the last century with Tunis, Tripoli, and others of what are called barbarous States. We had then an object to obtain and we set about it in a business-like manner. In every one of these Treaties there is a uniform clause describing the course to be pursued with regard to escaped captives—
  "When any of His Majesty's ships of war shall appear before Tripoli, upon notice thereof given to the English Consul, or by the commander of the said ships to the chief governors of Tripoli, public proclamation shall be immediately made to secure the captives; and if after that any captives whatsoever make their escape on board any of the said ships of war, they shall not be required back again, nor shall the said consul or commander, or any other his said Majesty's subjects be obliged to pay anything for the said captives."
  That was a very fair game in its way and this clause showed how it was to be played. Each State stood on its rights. We gave them notice that, when our ships arrived in their territorial waters, they must look after their slaves, but, if any slaves got away, there was a fair and frank understanding that the owners must not expect to have them back again. I do not desire to see anything so rough renewed now, but some understanding of this kind might be come to with a State in which slavery is permitted. I beg your Lordships, moreover, to remember how small a question this is every day becoming. What portion of Europe and of America is interested in it? Spain has Cuba. In the domains of Portugal slavery is professedly at an end. In Brazil slavery is dying out, and must come to an end in a short time. There remain therefore the comparatively small territories of Cuba, Zanzibar, Egypt to a certain extent, and the smaller States on the East Coast of Africa. It is for this purpose that the Government have recommended a Royal Commission, and I beg your Lordships to bear in mind the ends which have been answered in former cases by the adoption of the same

  1531
  course. Certainly the two greatest questions involving International Law which have arisen in my time have been the Neutrality Laws and the Naturalization Laws. What did we do in regard to the former? We acted on the existing Neutrality Laws during the American War, and we thought we had complied with them; but the country was of opinion that circumstances had altered so much that the principles of International Law required to be re-considered and put in harmony with the present day; and a Commission was appointed. They considered the question and made a Report, and at the breaking out of the Franco-German War your Lordships were enabled to pass a statute, which would have been impossible if the Act had not been preceded by a Commission. With respect to the Naturalization Laws, exactly the same state of things existed. There was no doubt as to the law, or of our international obligations, but the country desired to see the question placed on a wider and broader basis. The late Lord Clarendon was appointed Chairman of the Naturalization Commission. The noble Viscount who commenced this debate (Viscount Cardwell) was also, I think, a Member. That Commission also made a Report which enabled alterations to be made in the law, and an Act to be passed to give effect to these variations.
  The noble Viscount said that this was not a matter involving Party considerations, and I rejoice to think that slavery is no Party question. We have questions on which we disagree, but I thank God that upon this question there is no disagreement. I am ashamed to speak even for a moment as if slavery could be a question on which Her Majesty's Government could entertain any doubt. I have, however, heard it stated—not in this House, but "elsewhere"—probably in the heat of controversy, that there has been a lack of earnestness and energy on the part of the Government in dealing with this question of slavery. My Lords, my noble Friend the Secretary of State for Foreign Affairs sits in this House not only inheriting the name and title, but cherishing the memory, of that great Minister who was responsible for that statute, which I take leave to say might be printed in letters of gold—that which emancipated the negroes in our West Indian possessions.
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  Is it likely that he would desire to turn his back on the policy of this country upon the question of slavery? What has been done during the time when my noble Friend has been responsible for the conduct of affairs at the Foreign Office? He has made a Treaty with Zanzibar, supplementing the former Treaty, and removing the grave difficulties which had occurred in the construction of the former Treaty. My noble Friend has exerted himself to get the slave-market at Djeddah closed; and, if we may accept the telegraphic news, the state of domestic slavery is abolished in Zanzibar for 3,000 miles along the coast of the Seyyid's Dominions. Well, the Secretary of State for India—is he likely to alter the policy of this country in regard to slavery? He is now asking Parliament for greater powers for the suppression of the Slave Trade in those countries under the jurisdiction of the Viceroy of India. I then come to the Secretary of State for the Colonies. He at a time when it was a subject of much criticism that action should be taken—when the embers of a war were still smouldering—adopted the strong and noble course of putting an end to coercive slavery along the Gold Coast. These are the three Ministers responsible for the principal questions which arise regarding slavery. And I would say, even with regard to the Admiralty, has it shown no anxiety on this subject? If I am not misinformed, the force stationed upon the Gold Coast of Africa in 1875 was nearly doubled in point of men and guns compared with what it was in 1874. My Lords, I am ashamed to speak of these things as if there was any merit on the part of the Government in taking these measures. We have done nothing that would not have been done by any other Government; but I have referred to the matter to show that there has not been any supineness on the part of Her Majesty's Government in this matter. The Petition presented by the noble Viscount asks for the withdrawal of the last Slave Circular. That, however, would leave in force various former Circulars and precedents infinitely more obnoxious than anything contained in that Circular. Her Majesty's Government have not concealed—they do not desire to conceal—the policy which it is their object to follow, and to that object

  1533
  they intend to adhere. We believe it is one which will be justified by the Report we may look for from the Royal Commission; and I trust we are now about to take a step, and that not a small one nor an unimportant one, towards the time when we may anticipate, that it may be the destiny of this country to consummate, as it was her privilege to commence, the overthrow of that nefarious system which has been at once the curse and the disgrace of humanity.
  LORD SELBORNE: My Lords, I think your Lordships will have heard with great satisfaction much of the latter part of my noble and learned Friend's speech; because in the latter part of that speech he has unequivocally declared the adherence of Her Majesty's Government to the policy which we on this side have at heart. I must, however, own that I think my noble and learned Friend's conclusions, agreeing as he does in that policy, are not those which might have been expected either from the course which Her Majesty's Government has actually taken, or from the general tenour of his own arguments. I, confess there were some points in that argument the coherence of which was not to my mind extremely manifest—but, if I rightly understood him, he contended you cannot, in the present state of international obligations, get nearer to that policy in favour of the slave which Her Majesty's Government have at heart than you have got by the second Circular, and that in this state of international obligations you would do harm rather than good to the slave, if you were to comply with the prayer of the present Petition; the effect of which—as he assumed—must be, to bring back into operation other orders, more unfavourable to the slave than that Circular. I need not tell your Lordships that my noble and learned Friend behind me (Viscount Cardwell) did not mean, and the Petitioners did not mean, that you should withdraw this Circular, and leave other things of the same character in force. No such consequence need in any way follow. What we think, and what we mean, is, that both this Circular, which we regard as improperly and unnecessarily adverse to liberty, and everything else of the same character which may have preceded it, should be withdrawn. I should have supposed, from my noble and learned Friend's general argument,
  1534
  that he was looking to the Commission which has been appointed, to devise some means of relaxing those international obligations which he considers at present to fetter our hands and retard our progress—some means of enabling us to do that which shall result in the conclusion that no commander of a British ship of war in a foreign port or elsewhere is to deliver up or remove from his deck on the ground of slavery a slave who has once sought refuge there. But I said just now there were some things in the speech of my noble and learned Friend the coherence of which I did not distinctly understand, and on this critical and cardinal point I confess I was unable to follow him. He ended by suggesting a very plain, simple, and obvious way of getting rid of those supposed international obligations which, according to him, create our present difficulty—a way which we did not need a Royal Commission to point out, for the road is so plain and open that he who reads may run upon it—that is, to give general public notice which all the world' may understand that for the time to come, at all events, whatever may have been the understanding in times past, British ships do not desire to enter foreign waters, and will not enter them, fettered by any obligation to deliver up a fugitive slave. But why should we have a Commission to point out how we are to issue such notice? If the giving of such a notice would suffice to get rid of the difficulty, instead of issuing the first Circular or the second, or the Calcutta Instructions, or any other, the plain and obvious thing to do was to make it as clear as day before all the nations of the world that those were the terms on which for the future we would enter foreign territorial waters. If this was the right thing to do, why was it not done? And why have we now got, instead of it, this Second Circular, and this Commission? The speech of my noble and learned Friend has confirmed me in the opinion which from the first I had entertained—that there is really no question of International Law in this matter at all. It is a question of public policy—of what is due to the honour and dignity of this country, and to those great interests of the world which our policy in this matter alone has in view. I observed that the noble and learned

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  Lord, in endeavouring to show why it was necessary to issue some such Circular—answering on that point feebly and ineffectually the noble Viscount behind me (Viscount Cardwell)—adopted a somewhat different mode of expression from that which is reported to have been used by the head of the Government in "another place." I could not help taking note of the remarkable words with which the Prime Minister is reported to have begun his speech. They were—
  "From an abstract point of view nothing can be more disagreeable, and certainly nothing more difficult, than to codify International Law respecting fugitive slaves in territorial waters."
  Until I read those words I was not aware there was any such thing as International Law respecting fugitive slaves in territorial waters to codify. My noble and learned Friend has expressed himself in a somewhat different manner. He thought that we ought to codify the rules and traditions which had prevailed in that Department. At all events, such rules and traditions are not part of International Law. Whether they are, or are not, of such an inconsistent and contradictory character as my noble and learned Friend has represented, I cannot conceive anything to which the term and the idea of codification can be more inapplicable. While, however, I am unable to admit, that on this particular subject of fugitive slaves there is any International Law at all, I agree so far with my noble and learned Friend, that I also think it is a matter of plain common sense how the principles of what is called International Law should be applied to that subject. I will read a few sentences from one of the best works of an eminent author (Mr. Justice Story), quoted by my noble and learned Friend on the Woolsack in which he states the meaning of the doctrine that the comity of nations and of International Law requires one nation to recognize, and in some cases, and under some limitations, to give effect to the laws of another. The passages will be found in Sections 35 to 38 of the work on the Conflict of Laws. He says—
  "Section 35.—The true foundation, on which the administration of International Law must rest, is that the rules which are to govern are those which arise from mutual interest and utility; from a sense of the inconveniences which would result from a contrary doctrine;
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  and from a sort of moral necessity to do justice, in order that justice may be done to us in return."….
  "Section 36.—But of the nature and extent and utility of this recognition of foreign laws, respecting the state and condition of persons, every nation must judge for itself. It is, therefore, in the strictest sense a matter of the comity of nations, and not of any absolute paramount obligation, superseding all discretion on the subject."
  He adds, what seems to me to be very pertinent—
  "Section 37.—Vattel has with great propriety said, 'That it belongs exclusively to each nation to form its own judgment of what its conscience prescribes to it, of what it can or cannot do, of what it is proper or improper for it to do. And, of course, it rests solely with it to examine and determine whether it can perform any office for another nation without neglecting what it owes to itself.'"
  And he goes on to say—
  "Section 38.—There is, then, not only no impropriety in the use of the phrase, 'comity of nations,' but it is the most appropriate phrase to express the true foundation and extent of the obligations of the laws of one nation within the territories of another. It is derived altogether from the voluntary consent of the latter; and is inadmissible when it is contrary to its known policy or prejudicial to its interests."
  Now I ask you to apply these tests here. What says the conscience of this country as to the delivering up of fugitive slaves who have taken refuge on board Her Majesty's ships of war? Is it a thing which this country, foremost in the liberation and emancipation of slaves, can do? Is it a thing this country can do consistently with what it owes to itself? Is it a thing which is admissible as consistent with the known policy of England? No one of these questions can be answered in the affirmative. I, therefore, maintain that there is no ground whatever upon which any foreign nation independently of the terms of any particular Treaties—which might, of course, make all the difference—can call upon this country to deliver up a fugitive slave on board a British ship. With regard to the doctrine of ex-territoriality, my noble and learned Friend will excuse me saying that all his illustrations were superfluous. We have nothing to do with the recognition of marriages solemnized in territorial waters or with the question of the personal status even of the fugitive slave when within foreign territorial waters on board a British man-of-war as it would be regarded by an external law. On that subject there has been supposed to be some discrepancy between

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  the language held by Mr. Justice Holroyd and Mr. Justice Best; but, without going into it, I will assume, that by the doctrine of exterritoriality the privilege of a ship is established for the ship, for those who belong to it, and for the nation to which she belongs, and that it is neutral and colourless with regard to any question of status affecting other persons. If so, that question of status may properly be left to be dealt with by those laws which are or may be concerned with it: but there is no International Law—Treaties apart—which can compel the commander of a British ship of war to recognize, in any case whatever, the status of slavery; and the principles and policy of the laws of Great Britain, which on the deck of his ship he is bound to observe and to respect, forbid him to do so. As long as a British ship of war is in territorial waters she is inviolable—she is exempt from the foreign local jurisdiction. No foreign foot can be set on board of her to interfere with any one who is there; if any one is there, who should not be there, it is a subject of remonstrance between Government and Government; and if any foreign Government which feels itself aggrieved has not received satisfaction, the remedy is to give notice, if it should think fit, that British ships shall not be admitted for the future to its waters. When a man has once been received under the protection of the British flag, some reason must be shown why, in the particular case, that protection should be withdrawn. Is there any reason whatever, founded on international obligations, why the captain of a British ship, who cannot be compelled to do so by any foreign interference, should voluntarily, and by the direction of his own Government, recognize any man as a slave on board a British ship of war? I say, my Lords, there is not; and, further, I do not see how it could be done. In the case of "Forbes v. Cochrane," to which I have referred, another learned Judge, Mr. Justice Bailey, pointed out the practical impediments to any inquiry into the status of slavery by the captain of a man-of-war. It is impossible that he could make any just or useful inquiry—it would be to impose impossible conditions. There was more wisdom, and a much sounder view, too, of what is reasonable as between nations, in the old Treaties with
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  the Barbary States, to which my noble and learned Friend himself referred: and it may not be out of place to observe that those foreign countries, with which we have chiefly to deal in this matter, are under Governments more like the Barbary States than the Governments of civilized Europe. When a British ship of war first entered any territorial waters of those States, a certain notice was to be given; and it was then the business of the masters of Christian slaves to prevent, if they could, those slaves from getting on board the ship. If once they did get on board, they were not afterwards to be given up, nor was any compensation to be made for them. I assume that no improper means are used to induce slaves to come on board; and, assuming this, it is not more reasonable, on principles of International Law, to regard the commander of a foreign ship as a wrong-doer for not giving them back, than it would be for him to make the laxity of the local police, which enabled them, though uninvited, to get there, a ground of international complaint. But it is superfluous to dwell longer on this point, because the second Circular, which we are discussing, in the strangest way begins with defining the case with which it deals as that of a person who, when he comes on board, professes or appears to be a slave, and ends by saying that, if a demand is made for his surrender he is not to be surrendered, and that no inquiry is to be made into the fact of his slavery. Therefore, the Circular distinctly admits that the captain of a British ship is not called upon to inform himself by inquiry or otherwise whether the man be a slave or not; and the notion of the existence of any obligation either to make that inquiry or to surrender him on demand is absolutely renounced by the Circular itself. If this were the whole effect of the Circular, my noble and learned Friend's argument, that it is a Circular in favour of liberty, might, of course, have some reason in it. But, notwithstanding all this, it says—and this is the sting of the whole—that, although you are not to entertain any demand for the surrender or enter into any examination into the status of the slave, yet with regard to this particular class of person—a person professing or appearing to be a fugitive slave—you are not in the first place to admit him on board unless his life be in

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  danger; and then, secondly, if, in order to save him from that danger, you have received him, you ought not, after that danger is past, to permit him to continue on board. He is not to be surrendered upon demand; but—for this is what it really comes to—he is to be surrendered without demand. This is no forced construction: it is the thing really meant, as is proved both by a comparison between this and the preceding paragraph, which relates to a slave received on board on the high seas, and by the line of argument used by my noble and learned Friend himself in its defence. I have not thought it necessary to dwell upon the paragraph relating to the reception of fugitive slaves on board British ships on the high seas, because, however little such an explanation may seem to be in accordance with the impression which has been made upon most people by the language used, my noble and learned Friend has assured us, that the directions contained in that paragraph are intended to encourage the commanders of British ships of war to receive fugitive slaves on board their ships more readily than they would receive other strangers. But of this, at all events, there can be no doubt—that, under the second paragraph, a real protection is to be given to the fugitive slave, once received under those circumstances. These are the words: "In any case in which, for reasons which you deem adequate, you have received a fugitive slave into your ship, and taken him under the protection of the British flag upon the high seas beyond the limit of territorial waters, you should retain him in your ship, if he desires to remain, until you have landed him in some country or transferred him to some other ship where his liberty will be recognized and respected. But within the territorial waters of a foreign State you are bound by the comity of nations, while maintaining the proper exemption of your ship from local jurisdiction, not to allow her to become a shelter for those who would be chargeable with a violation of the law of the place." The conclusion, therefore, that a man, into whose status of slavery you are not to inquire, is not to be permitted to continue on board, if he "professes" or "appears" to be a slave, is based upon upon the argument that there is a general obligation on the part of foreign public
  1540
  ships, when within the territorial waters of any State, not to give "shelter to those who would be chargeable with a violation of the law of the place." You have received this man on board for what the Circular assumes to be some sufficient reasons: you have neither invited nor encouraged any violation of the law of the place: the local law, supposed to be violated, is the law of slavery, depending on the man's status as a slave:—if he is not a slave, he cannot be chargeable, on that ground, with any violation of the law of the place; you are not to inquire whether he is a slave or not: and yet you are to compel him to leave the ship, lest you should give shelter to one who is violating the law of the place. Can anything be more contradictory? That order now stands, in the general code of Admiralty instructions, side by side with the other order concerning political refugees, referred to by the noble Viscount behind me (Viscount Cardwell), which is numbered 381 in the addenda to the general Admiralty instructions, published in 1868. I will take the liberty of reading it:—
  "Her Majesty's ships, while lying in the ports of a foreign country, are not to receive on board persons (although they may he British subjects) seeking refuge for the purpose of evading the laws of the foreign country to which they may have become amenable. During political disturbances or popular tumults refuge may be afforded to persons flying from imminent personal danger. In such cases care must be taken that refugees do not carry on from Her Majesty's ships correspondence with their partisans, and the earliest opportunity must be taken to transfer them to some place of safety."
  Political refugees may be taken on board, and the earliest opportunity must be taken to transfer them to some place of safety. A political refugee may be a person of a much more dangerous character than a poor slave; he may be the means of perpetuating a long and serious disturbance of the peace of his country; but the dictates of humanity and the general comity of nations are held to justify receiving him and giving him shelter, even in the territorial waters of the country whose laws he is violating and from whose jurisdiction he is seeking to escape; and in continuing that protection when once it has been accorded until he has been transferred to a place of safety. But why are not these principles which are good for one case not also good for the other? Why is the

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  political refugee to be transferred to a place of safety while the fugitive slave is compelled to go on shore, where he will fall immediately into the hands of his master. I assume that our captains do not go into foreign waters for the purpose of inviting breaches of foreign law, or for the purpose of liberating domestic slaves; I assume that slaves come on board in such exceptional circumstances as are consistent with an adherence to the general Instructions—and if they do it would be wrong to give them up.
  The order as to political refugees shows, as clearly as anything can, that proper respect may be shown by the commander of a British ship to the laws of the country in whose waters he is lying, without obliging him in all cases to make himself an executioner of those laws, or even to refuse shelter to fugitives, who maybe are in danger from them. My noble and learned Friend referred to the general Admiralty Instructions, which enjoin upon the captains of Her Majesty's ships, generally, in foreign parts and places, the duty of showing a conciliatory line of conduct towards the authorities and inhabitants, and of showing deference to their established rights, ceremonies, customs, and regulations. He has also referred to the various instructions issued for the guidance of naval officers engaged in the suppression of the Slave Trade, in which they are told to observe and to point out the distinction between the Slave Trade, which Great Britain is determined to put down, and the system of domestic slavery, with which she does not claim to interfere. I could not help thinking, that, in referring to those instructions, my noble and learned Friend was touching upon ground dangerous to his own argument, and properly belonging to his opponents. It is perfectly true, that the general obligations of British commanders are such as are pointed out in those general Instructions; it is also true that they are sufficiently pointed out there. Nobody desires that these Instructions should be withdrawn; and I do not understand my noble and learned Friend to say that they are not sufficient for their purpose. "We on this side say that they are sufficient for that purpose: and we deny that they furnish any warrant whatever for the present circular; which, if the
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  ground taken up by it had been really covered by them, would, of course, never have been issued.
  My Lords, I come to another branch of the subject on which I differ greatly from my noble and learned Friend. I take issue with him on a matter of fact. I deny as a matter of fact that we have down to this time entered into foreign territorial waters upon a general and public understanding that we would give up fugitive slaves. My noble and learned Friend contends that there have been orders issued which affirm in some way the doctrine that fugitive slaves are to be delivered up; and then he says that some of these orders were communicated to foreign Governments and that they are entitled to suppose we enter their waters on those terms. I deny it. I say the generally understood rule has been directly the contrary, and is that for which we now contend. And I think I have good reason for saying so. What say all our naval commanders? If all foreign governments understood these people were to be given up, how did it happen in 1869 that Sir Leopold Heath understood the direct contrary? When the Law Officers of the Bombay Government were consulted by the Resident in the Persian Gulf they understood the rule to be exactly the contrary. How happens it that a gallant and distinguished Officer, speaking the other night in "another place," had never known or heard of any rule except the direct contrary? But my noble and learned Friend has referred to several instances which he considers to establish his case. I will take those instances in their order. First as to the case of the negro stowaway which happened at Havannah in 1837, Lord Palmerston gave instructions that he should be delivered up because Lord Palmerston was informed that he came on board under suspicious circumstances. Lord Palmerston dealt with that particular case upon its particular circumstances; and I venture to say that no Government would deal with such a case in any other way. As to the warning which Lord Clarendon gave to a captain at Rio that he was not to take on board those who by the law of Brazil were recognized as slaves, Lord Clarendon at the same time said it should be borne in mind that if a slave were to take refuge on board a British ship it would be the duty of the captain to refuse

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  to surrender the slave. I think an ingenious suggestion was made in a very clever speech "elsewhere," that this was in consequence of the Aberdeen Act. I knew we should not hear that from my noble and learned Friend, because that Act has nothing to do with slaves coming on board. It is quite clear that whether Lord Clarendon changed his mind or not Lord Clarendon knew no rule but this—that a slave taking refuge on board of a British ship of war was not to be surrendered. I do not think your Lordships will find in these Papers any sufficient ground for believing that Lord Clarendon ever altered his mind upon the general principles. As to the case at Mozambique in 1869, I must say I felt a little surprised at the manner in which the facts of that case seemed to be used by my noble and learned Friend. I mean the case of the ship Daphne and Captain Sulivan. As I read the Papers it was not the case of a slave at all. The circumstances are remarkable. For about two years before 1869 the Government of Portugal had been deliberating upon the policy of emancipating the slaves in all their colonies. Mozambique was one of those colonies. In a letter addressed by Commander Sulivan to Commodore Sir Leopold Heath on this subject in October, 1869, he says—
  "You will observe that he states that the Order abolishing slavery was published only two days before our arrival, though the abolition was decreed by the Portuguese Government in February last, and you will observe that, while the Governor in his letter calls them 'free negroes,' in which case they would be perfectly justified in coming on board, yet he adds that some of them belonged to the inhabitants and to some Baneans (who are and who always claim the right to be considered British subjects), and that these persons request that the negroes should be returned to them."
  The men who came on board the Daphne, therefore, were not slaves at all; and, moreover, they were claimed, not as slaves, but as free men who, in contravention of the laws of their country, had attempted to leave without having pass-ports. Prom first to last the status of slavery was not imputed to them, although Captain Sulivan thought that they had been treated as slaves. Therefore, in that case a very different question was raised, and Lord Clarendon, in expressing his disapproval of the conduct of Captain Sulivan in carrying off the men, must not be understood to
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  to have intended to make a declaration that all fugitive slaves ought to be surrendered back into slavery. It appears from the communication from the Secretary of the Admiralty to Mr. Hammond, dated April 12, 1870, that it was proposed to put Captain Sulivan on his trial by court martial for carrying off Portuguese subjects from Mozambique without passports—
  "contrary to the law of the place, and in defiance of the requisition made upon him by the Government (such conduct being contrary to the Queen's Regulations), and to add charges for detaining the negroes against their will and permitting them to be ill-treated."
  Turning now to the case of the Dryad and Nymph in Madagascar, I confess that if one looked only at the language of Lord Clarendon's letter, one might perhaps have fallen into the not unnatural mistake of supposing that he approved fugitive slaves who had sought refuge on board our national ships being returned to their lawful owners. No doubt in reference to this case Lord Clarendon did see something that appears inconsistent with the general rule on the subject which he laid down in 1856, and he used language harsh and grating to our ears when he spoke of slaves as property which should be returned to their lawful owners. He was, however, then disapproving what bad been done because it was contrary to the express stipulations of a Treaty which we had just before entered into with the Queen of Madagascar, Article 9 of which was to the following effect:—
  "Her Majesty the Queen of Madagascar engages to permit the ships of War of Her Britannic Majesty freely to enter into the military ports, rivers, and creeks situated within her dominions, and to allow such ships to provide themselves, at a fair and moderate price, with such supplies, stores, and provisions as they may from time to time stand in need of. No subject of the Queen of Madagascar shall be permitted to embark on board any British ship, except such as shall have received a passport from the Malagasy authorities. The rights of sovereignty shall, in all cases, be respected in the domains of the one Sovereign by the subjects of the other."
  Article 16 gave British ships of war the right at all times to enter the ports, rivers, and creeks within the dominion of the Queen of Madagascar, in order to capture all vessels engaged in piracy. By Article 17—
  "No persons from beyond sea shall be landed, purchased, or sold as slaves in any part of

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  Madagascar, and Her Majesty the Queen of Madagascar consents that British cruisers shall have the right of searching any Malagasy or Arab vessel suspected of being engaged in the slave trade, whether under sail or at anchor in the waters of Madagascar …. and, if any such vessels shall prove to be engaged in the slave trade, they may be dealt with as pirates."
  What had been done in this case as alleged by the Madagascar authorities was not that fugitive slaves had been taken away, but that the act done was contrary to the Treaty obligation not to take away Madagascar subjects without passports. In the despatch from Commander Colomb to Commodore Sir Leopold Heath, dated the 1st of October, 1869, the former states that—
  "Several runaway slaves having escaped to the ship from the town of Majunga and claimed my protection, I temporarily granted it, and the Governor then remonstrating in very proper terms, referring me to a stipulation of the Treaty of 1865, whereby no 'subject of the Queen of Madagascar was to be permitted to come on board a British ship without a passport,' I said I could not consider a slave to be a 'subject' in the terms of the Treaty, and that a British man-of-war was so far English soil that a slave reaching that asylum should be freed. The Governor replied that perhaps I was right, but requested an acknowledgment from me, which I gave him, observing that I should not finally deal with the escaped slaves until I had the opinion of the British Consul at Tamatave."
  The complaint in that case therefore was founded on the fact that there had been a violation of express Treaty stipulations of great importance, which had been entered into with the view of obtaining the assistance of the Sovereign of Madagascar in putting down the slave trade in her territorial waters; and therefore Lord Clarendon, although I admit he expressed himself in harsh language which sounds painfully upon our ears, laid down no universal and general principle such as that which the noble and learned Lord on the Woolsack attributed to him, and said were afterwards embodied in the Instructions of 1871.
  THE LORD CHANCELLOR: What I said was that those Instructions were issued by the Commodore of the East India station in 1871, but that they must have been issued with the cognizance of the Foreign Office.
  LORD SELBORNE: If the noble and learned Lord means that the origin of these Instructions issued to the East India station probably was the language in Lord Clarendon's letter, I shall not
  1546
  care to controvert his position; but what I do assert is that Lord Clarendon himself never issued those Instructions nor contemplated their being drawn up; nor do I believe that there is any ground for the supposition, that they were issued with the cognizance of any Minister who ever presided at the Foreign Office. And, of course, those who disapprove of the present Circular must disapprove of those Instructions also. My Lords, I have now given to your Lordships the reasons which make me think that the reply of the noble and learned Lord to the question why, Her Majesty's Government should have thought it necessary to issue these Circulars dealing with this subject generally instead of waiting to deal with each case separately as it arose, was entirely unsatisfactory. Such a thing was never before thought necessary, and was never before attempted, unless the Instructions of the Commodore on the East India Station in 1871 can be considered to be an exception; and that, if I am right, was the act of a naval commander, and not of the Queen's Government, and it had, after all, only a local operation. For my own part, I must say that I cannot conceive a more unwise thing than to attempt to lay down a general rule of this kind. It is quite clear that, if Treaty engagements are violated, you have a rule to act upon, different from that which may be applicable when there is no Treaty. Every case ought to be dealt with according to its own circumstances; and experience has not hitherto furnished any ground for believing that it will be difficult to deal with each individual case as it arises. What has happened in this case shows the difficulties into which you get, when you attempt to establish any universal rule. It is said that it was necessary to do something, because of the questions which had arisen in the Persian Gulf, and because the Indian Government had laid down, subject to the approval or disapproval of Her Majesty's Government, certain rules, unfavourable to liberty, of which Her Majesty's Government did not approve. As far, however, as I can form an opinion, the rules laid down by the Indian Government were in no degree more unfavourable to liberty than the first Circular, which repeated their most questionable provisions; and, if it is right now either to appoint a Royal Commission,

  1547
  or to take the course recommended in the speech of my noble and learned Friend, I cannot understand why, when that Circular was withdrawn, the second should have been issued. Why would it not have been sufficient for Her Majesty's Government to disallow the Calcutta Instructions, and to impress upon the Governor General at Calcutta the importance of not allowing Her Majesty's ships in the Persian Gulf to interfere unnecessarily with the pearl fisheries, by remaining so near the shore that slaves could swim out to and seek refuge on board of their vessels, in a way calculated substantially to embarrass that trade? I have from the beginning had much difficulty in understanding what the Royal Commission which has been appointed had to do; and I must say that my difficulty has been increased by the speech which has been addressed to your Lordships by my noble and learned Friend on the Woolsack. I feel sure that the labours of the Commission will not be facilitated by the fact that they have before them any foregone conclusion, described as necessarily resulting from the present state of International Law and obligations. I do not see how it can be for the advantage of the Government, either to be responsible, while the Commission is sitting, for a Circular, the principle of which they do not themselves wish to see maintained, or to have that principle, while it is still embodied in a document to which they have given their authority, set aside, and condemned. On the whole, I cannot but think that it would have been for the credit of the Government and the honour of the country to have withdrawn a document which cannot be maintained.
  THE EARL OF DERBY: My Lords, I should have been well content to leave this case, as far as the Government is concerned, in the hands of my noble and learned Friend on the Woolsack, who has covered the whole ground of the argument, but for the fact that the Department with which I am connected has had most to do with the question, and I might, by remaining silent, cause it to be supposed that I wished to escape my share of whatever responsibility belongs to this business. As far as I can gather, the whole of this controversy has turned upon two questions of very unequal degrees of importance. The first
  1548
  question is, whether any Circular or general Instructions—by whatever name you may choose to call it—ought to have been issued; and the second question is, assuming that the issuing of the Circular was right, whether we have or have not laid down accurately and fairly in the Circular those recognized doctrines of International Law by which the persons to whom it is addressed ought to be guided. With regard to the first question, you require little argument to enable you to form your opinion. It has been shown in these Papers—and, indeed, it was evident from the first to every one who knows the ordinary course of Public Business—that Instructions in this matter were not volunteered. They were called for. Particular cases had arisen, and others might arise, on which it was necessary that naval officers should decide one way or another. I have never been able even to understand what is meant by saying—though I have seen it pretty often said in the Press, and sometimes in speeches—"It is a mistake to lay down any general rule; the officers of the Navy might have been trusted to exercise a wise discretion." I am as willing as any one to trust the officers of the Navy, and I quite admit that questions will often arise in which an officer must use his own discretion. But is it fair to them, is it a reasonable thing, for Her Majesty's Government, with legal assistance at hand, and with all the traditions and records of the Foreign Office and the Admiralty available, to say—"These are nasty questions; if we decide them one way, we run our heads against International Law; if we decide them the other, we run the risk of a popular cry against us; there-fore we will not decide them at all—we will simply tell each officer to do the best he can, and in that way we reserve for ourselves the option of disavowing him if he does anything which has an unpleasant look about it?" I say that any Government that should reason in that way would incur ten-fold more censure than would fall upon it for any exercise of its own judgment, however mistaken. I say that that course would have been a cowardly, an unworthy, a mean evasion of our duties and responsibilities; that it was and is our duty to lay down some fixed rule by which our officers might be guided in their conduct, and that even the worst rule, if

  1549
  once known and settled, is better by far than the absence of any. Misera servitus ubi jus aut vagum aut incognitum. Every person, British or foreigner, slave or slaveowner, has a right to know, in given cases, what view British officers will be bound by their orders to take of his rights and his claims. I will dwell no more on that point; there is the less need, because, in fact, the practice of issuing Instructions on this and similar subjects is not new; it has been acted upon by former Governments and former Boards of Admiralty, and what is complained of in our conduct is, not that we created in that respect a new precedent, but that we followed precedents which already existed. But, my Lords, I am, in fact, understating the case, when I speak of the inconvenience of leaving officers without Instructions. The inconvenience would have been of a more serious kind; because our officers would have been left, if I rightly understand the position of affairs, to act under Instructions which were different, and materially contradictory, in different parts of the world. The naval officers on the East India Station would have been guided by the Instructions issued under Lord Clarendon's directions in 1870, to the effect that slaves coming on board ships of war within three miles of the shore—that is, within territorial limits—should be returned to their owners. But in the Persian Gulf a different set of Instructions prevailed. The very same question had been raised by the British Resident there in 1871, and the Government of Bombay had decided in an exactly opposite sense. I need not quote their words; they are to the effect that British commanders would incur serious legal responsibilities if they attempted to coerce a slave under similar circumstances to return to his master. That is not all. In 1873 a case of the kind arose. The Political Resident at Bushire wrote to the Government of India, pointing out the inconveniences that would arise if this Bombay decision were upheld; and thereupon the Government of India reverses the decision of the Bombay authorities, and gives as its opinion—no doubt a provisional opinion only and pending a reference home—that the privileges accorded to vessels of war in foreign territorial waters do not operate to set aside the law of the country, and that
  1550
  slaves ought, therefore, to be given up when demanded. Under the circumstances which we are considering, that is the state of things we find—one view taken by the Admiralty at home, another by the Bombay authorities; the Indian Government inclined to agree with the home authorities, but not quite able to decide. My Lords, will it be argued that it was not our business—that it was superfluous and uncalled for on our part—to try and get rid of this chaos of contradiction and confusion, and to tell those under our orders plainly what they were to do and what they were not. I understood the noble Viscount (Viscount Cardwell) to say that if the Instructions contained in the Circular had been local in their application, he should have objected to them less than he now does. I do not myself see why in a matter of this kind the same Instructions should not apply all the world over; but I will not discuss that point, for the reason that in the present case the application of the rules contained in the Circular will practically be of a local character. Slavery is dying in Cuba and Brazil: the slave trade on the West African Coast is suppressed: it is only on the Eastern Coast of Africa, and in connection with a few Mahomedan States that difficulties are likely to arise, and even there these Instructions will not, I hope, be necessary for any great length of time. The noble Viscount also said that as matters had gone on so well without any general Instructions, he did not see why any such Instructions should now be issued. I demur to that proposition. If the proposition contended for means that we have not got into any war or any diplomatic complication with respect to these matters, no doubt that cannot be disputed; but I think I can show that our action has not been uniform or consistent in past years, and that therefore it is not unreasonable that we should desire to establish some settled and uniform principle of action. I do not think it follows that because in past years matters of this kind have been settled, or have been allowed to settle themselves, with very little difficulty, and that little was heard of them at the time—it does not follow, I say, that such would be the case now. Many years ago, before the telegraph was established, these questions were locally disposed of by local authorities. Nothing was heard of them

  1551
  by the public at home, and they gave rise to no discussion or controversy. I need not point out how entirely different a state of things we have to deal with now.
  But there is a wider question—namely, whether this much-criticized document of ours is in accord with what the noble and learned Lord (Lord Selborne) will not allow me to call International Law, but international obligation. The noble Viscount said that the question was one of policy, not of law; and if I rightly understood the noble and learned Lord, he went further and contended that it was a matter with which International Law had little or nothing to do.
  LORD SELBORNE: I said that in dealing with the question of slaves who had got on board one of Her Majesty's ships, I did not admit the existence of International Law.
  THE EARL OF DERBY: Well, the noble and learned Lord carries the doctrine much further than I have heard it carried before. There is, no doubt, a sense in which the words quoted by the noble and learned Lord from Vattel are true and intelligible; but I must say I think that that is a doctrine which will not bear straining or carrying too far. The authorities of various nations are extremely apt to differ when the question is what they are expected to do towards each other, and what other nations are bound to do towards them. We have had abundant proof within the last few years that the very widest differences may exist on such matters between even the most civilized nations on the earth. I think, therefore, that the doctrine contended for by the noble and learned Lord, although it is not one which I can absolutely deny or disclaim, is one which ought to be taken with great caution. I do not think it necessary, my Lords, to contend seriously against the doctrine which I have heard elsewhere, but which has been only touched upon in the course of this debate—namely, that international rules need not be applied with any strictness to slave-owning Powers because they are weak and imperfectly civilized. To accept that doctrine is to sanction the substitution of brute force for law—to affirm a principle which would strike at the root of all International Law—the principle that there is one rule for strong nations and another for weak ones. We have never
  1552
  admitted or acted upon any theory of that kind. We are bound to deal with Brazil, with Persia, with Zanzibar, with Spain in Cuban waters, precisely as we should have dealt with the United States before the late Civil War swept away slavery. Accept any other view and in your zeal against slavery you recognize and sanction that very doctrine of simple force, as opposed to justice, on which slavery rests. The question, then, as I understand, which lies at the bottom of the matter, is how far the laws of a foreign State are to be considered as valid on board of a national vessel of some other country within the waters of that State. It is, I believe, always maintained that a vessel under such circumstances is free from the jurisdiction of a foreign Power. But that is a matter of usage and of concession. Chief Justice Marshall, in the celebrated judgment on the case (referred to by my noble and learned Friend on the Woolsack) of the Exchange, which is regarded as the leading authority on this subject, says—
  "All exceptions to the full and complete power of a nation within its own territories must be traced up to the consent of the nation itself. They could flow from no other legitimate source."
  And he goes on to say—
  "This consent might in some instances he tested by common usage, and by common opinion growing out of that usage."
  And no doubt the universal usage of nations sanctions the exemption of a national vessel from foreign jurisdiction. But it is clear from the very nature of the case that there must be limits to the extent of this immunity, and those limits are laid down in the judgment to which I have referred. Mr. Justice Story, describing it, says—
  "In the case of the Exchange the grounds of the exemption of public ships were fully discussed and expounded. It was there shown that it was not founded upon any notion that a foreign Sovereign had an absolute right, in virtue of his sovereignty, to an exemption of his property from the local jurisdiction of another Sovereign, when it came within his territory, for that would be to give him sovereign power beyond the limits of his own empire. But it stands upon principles of public comity and convenience, and arises from the presumed consent or licence of nations, that foreign public ships coming into their ports and demeaning themselves according to law and in a friendly manner shall be exempt from the local jurisdiction; but, as such consent

  1553
  and licence is implied only from the general usage of nations, it may be withdrawn upon notice at any time without just offence; and if afterwards such public ships come into our ports, they are amenable to our laws in the same manner as other vessels.… It may, therefore, be justly laid down as a general proposition, that all persons and property within the territorial jurisdiction of a Sovereign are amenable to the jurisdiction of himself or his Courts, and that the exceptions to this rule are such only as by common usage and public policy have been allowed, in order to preserve the peace and harmony of nations and to regulate their intercourse in a manner best suited to their dignity and rights. It would indeed be strange if a licence implied by law from the general practice of nations for the purposes of peace should be construed as a licence to do wrong to the nation itself, and justify the breach of all those obligations which good faith and friendship by the same implication impose upon those who seek an asylum in our ports. To violate that which, rightly or wrongly, is the law of the land, is obviously to do wrong to the nation itself."
  In face of that judgment, and of the many authorities on the same side, it seems impossible to maintain the doctrine of absolute ex-territoriality except as a legal fiction.
  But, my Lords, there is a case more directly in point as regards the matter now under consideration and which has been often referred to of late. I mean the case of "Forbes v. Cochrane." In that case a suit was brought against the commander of a British man-of-war for taking away certain slaves who had escaped on board his vessel from Florida, then a Spanish colony. The vessel was at the time stationed off Cumberland Island, then in the occupation of Great Britain, and was therefore legally in British waters. The action failed; but Chief Justice Best, both during the argument and in his judgment, laid it down that if the vessel had been in the waters of Florida "all the laws of Florida would attach to both the ship and the slave." You cannot, my Lords, have a clearer or stronger statement from an English Judge than this—that in his view a slave was not legally entitled to freedom by coming on board a British man-of-war, if that vessel were at the time in territorial waters. Has that judicial opinion ever been judicially reversed? I believe it has not: and what makes it stronger is that in delivering it the Chief Justice asserted strenuously the right of the slave to freedom because the case had occurred elsewhere than in territorial waters. I will not say that is the precise distinction which we have drawn,
  1554
  because in the Circular now under discussion we have not gone so far as Chief Justice Best. Now, my Lords, what are the later precedents bearing on this question? There is the case of the negro who escaped to Her Majesty's ship Romney in 1837. He was given back to the local authorities, and Lord Palmerston approved the conduct of the officer who so gave him back. In 1851 a negro made his way on board the Conflict, off the Brazilian coast. The Admiral disapproved his having been received. No further action was taken, the man never being claimed. In 1856 the British Chargé d'Affaires at Rio issued a circular to warn masters of merchant vessels not to receive fugitive slaves. He was approved by Lord Clarendon; but with the reservation, of which I give you the full benefit, that it would not be the duty of the captain of a man-of-war to surrender a fugitive. I do not want to give less than its due weight to that precedent; but it ought to be remembered that at this time the Aberdeen Act was in force, and, rightly or wrongly, we were dealing in an exceptional manner with Brazil, condemning Brazilian vessels in our own Courts, and refusing to deliver over to Brazilian authorities negroes captured by British cruisers. It is worth notice in this connection that no previous case has been found of a man-of-war having refused to surrender a slave escaped from the shore. The point seems never to have been practically raised with Brazil. There are, however, cases of demands made by the Brazilian Government for the surrender of slaves found on board vessels captured by British cruisers. In the first of these cases—which occurred in 1841—the men had formed part of the crew of the vessel, and, when the claim was made, they were on board the British ship Crescent, a Queen's ship stationed in the harbour of Rio de Janeiro. The Queen's Advocate was consulted, and the Brazilian Government were informed that though Her Majesty's Government declined to send these men back to their masters, they were ready to pay compention for them. In 1843 a similar claim was made for the surrender of two other men, seized in the same way, and sent on board the same ship Crescent. Lord Aberdeen refused to give them up, on the advice of the Queen's Advocate, contending that the jurisdiction of Brazil

  1555
  did not extend to the vessel in which these men were placed. But what was the end? The Brazilian Government renewed the demand; the matter was again considered; it was held that the objection could not be maintained, and compensation was accordingly paid. That was done by Lord Aberdeen, the author of the Aberdeen Act, and the concession was made to that very State with which he dealt in so decided, not to say so high-handed, a manner. There is no other case of importance until we come to the recent one, which gave rise to Lord Clarendon's Instruction in 1870. It will be found in the letter written by direction of Lord Clarendon, and sent by the Admiralty to Commander Sir Leopold Heath, and related to the proceedings of the Nymph and Dryad in carrying off and then liberating certain domestic slaves who swam off to those vessels to escape from their masters. Lord Clarendon stated that the commanders of those ships were not justified in sailing away with the slaves in question, and he added—
  "The status of slavery being acknowledged and lawful in Madagascar, the commander of a British ship of war is not borne out in depriving the inhabitants of slaves who are rightfully their property, and the owners of such slaves are plainly entitled to compensation from us for the losses incurred at our hands by their abduction."
  If that principle were applicable to Madagascar, it would equally apply to any other country similarly circumstanced. Nothing can be more decided than the Instruction of 1871 issued by the officer in command of the East India Station—
  "Art. 147. Her Majesty's Minister for Foreign Affairs has decided that slaves coming on board ships of war within the territorial jurisdiction of the country from which they escape—that is to say, within three miles of the shore—should be returned to the owners; but when it appears that slaves coming on board Her Majesty's ships have been recently imported in violation of treaties, the commanders of Her Majesty's ships should communicate the facts to the Consul, with a view to proper inquiry being made, rather than carry off the slaves on their own responsibility."
  Now, I do not want to get into any miserable personal argument about who is responsible for this, that, or the other; but this Order came home to the Admiralty, it must have passed under the eyes of the First Lord, and we have, therefore, one Department at least of the
  1556
  late Government pledged to the doctrine which it lays down; while the Foreign Office was pledged, if not to that Order, at least to the Instruction of Lord Clarendon, milder in terms, but of which the general principle was the same. This is briefly the history of this question. Two things seem clear from it—that the claim to retain fugitive slaves escaping on board vessels in territorial waters is one which has on some occasions been asserted, in others repudiated, and never persistently maintained; the other—as has appeared, indeed, in recent discussions—that the true legal doctrine on the subject is involved in considerable uncertainty—that it has never been laid down in an authoritative and accurate manner. And from both these facts I draw the same conclusion—that it was our duty to lay down for the present the law, such as on the best advice we conceive it to be; and that with reference to the possibility of amending it, if necessary, by common consent, we could not do better than call in the advice of qualified and impartial persons as we have done in the Commission lately issued.
  My Lords, there is one circumstance which I ought to mention, as it increases the necessity for dealing cautiously with the wishes and interests of foreign countries as connected with this matter. We must not forget that, in the majority of cases where questions connected with the escape of fugitive slaves are likely to arise, our ships of war are in the territorial waters of other States by special permission and for the performance of a special duty. They are there to check the slave trade. They can only do that in the waters of other States by special authorization from those States. The State that has the right to grant that permission has the right also to withhold it; the one implies the other. But if our ships were used as places of refuge for every domestic slave who wished to escape to them, it is certain that they could not remain in territorial waters with the consent of the local authorities. One of two things would happen. Either they must be kept there by force—which is a high-handed way of doing things, and not likely to answer in the long run—or they must be withdrawn—and then you are immensely weakening your own power of putting down slave trade on those coasts. On the question of policy

  1557
  it is hardly necessary to say that the British Government has always drawn the widest distinction between the slave trade and domestic slavery. The policy of that course is obvious. Domestic slavery is an institution which it belongs to the Government of each country to deal with as it thinks best. It is a question of internal legislation. If it is to disappear from the world, as I believe it will, that result will be brought about, not so much by diplomacy, not so much by philanthrophic efforts, not so much even by newspaper articles; it will cease of itself through the general elevation of the people in every country which reaches a certain point of civilization—because the existence of slavery is found inconsistent with the social and economical requirements of the people. A nation that requires skilled labour cannot get it from a slave population. A nation that has reached a certain stage of refinement cannot endure the sight of harshness and coercion, and so the free labourer is substituted for the slave. We should do no good if we attempted to accomplish by force from without what can only be effectually done by a people for itself. That principle has been clearly understood and acted upon by former Governments in 1865 and 1869. As regards the slave trade, the case is different. That cannot be carried on without involving a condition of war and plunder over a widespread area which makes good government and legitimate trade impossible. It is carried on, moreover, on the high seas, where we have the power to check it effectually, without interfering with the internal administration of any country. We have always, therefore, assumed a right to deal with it, and I will add, that it has never been more effectually dealt with than at the present time. On the West Coast of Africa it has ceased to exist; on the East Coast it is greatly lessened. We are at this moment negotiating a Convention with Egypt under which we hope to be able to deal with it effectually in the Red Sea. We have not altered the policy of England. It does not date from yesterday; it will not end to-morrow. We believe we have laid down the law as it stands. We are willing to consider how it may be altered for the better; but we decline to do that in an arbitrary manner; or however good the motive might be, to create a precedent which might lessen respect
  1558
  for the settled principles of International Law.
  LORD COLERIDGE: At this time of night, my Lords, if I followed my own inclination, I should not address your Lordships; and one reason which would induce me to be silent is the real disinclination I feel to criticize any legal document for which my noble and learned Friend on the Woolsack is substantially responsible; for, knowing the authority with which he speaks, I feel distrust when I find myself arriving at conclusions very different from his on a matter which appears to me abundantly clear. It is, however, my duty to state shortly and clearly what I conceive to be the law of England on this matter—law now at least 200 years old, and laid down in clear and most unfaltering terms by repeated decisions—and how far it has been permitted to International Law to interfere with, qualify, or in any manner supersede the Law of England. I entirely assent to what was said by the noble and learned Lord on the Woolsack that International Law, strictly and rightly considered, and used in the only way it can be, as a basis of argument, is not a law at all, but merely a collection of the usages of civilized nations whereby they have regulated their intercourse, friendly or unfriendly—in some instances, no doubt, settled and de-fined enough to be made subject-matter of statement, but in a great majority of instances—perhaps the majority—utterly unsettled and indefinite, and still remaining matter of fierce and angry discussion. It is only common sense to admit that in dealing with foreign nations you must take account of their laws as well as your own; but where principles differ, England has always determinedly maintained her own principles, and the comity of nations does not call upon England to do otherwise. England has uniformly refused to lend her aid to enforce foreign laws which were opposed to the principles of her own; and Lord Wynford has laid down that "Comitas inter communitates cannot prevail in any case where it violates the law of our own country, the law of nature, and the law of God." Happily, although villeinage prevailed in England, there was never such thing as slavery, and consequently precedents do not go back more than two centuries; but early in last century, when actions were brought to

  1559
  recover slaves or the value of them, or to enforce contracts for the sale and purchase of slaves which had been made in other countries, it was repeatedly laid down by Lord Holt that—
  "The common law takes no notice of negroes being different from other men. By the common law no man can have a property in another.…There is no such thing as a slave by the law of England. As soon as a negro comes into England he becomes free. One may be a villein in England, but not a slave."
  These cases were followed by the famous case of the negro James Somerset, which was ably argued, and in which Lord Mansfield gave judgment with the greatest reluctance, after vainly recommending a compromise or application to Parliament to alter the law. In 1778 the Court of Session, in the case of a negro named Knight, followed the judgment of Lord Mansfield. Fifty years ago, in the case of "Forbes v. Cochrane," which has already been alluded to, the law as formerly laid down was confirmed in the strongest language. It may, perhaps, be said—though I do not think with truth—that Mr. Justice Best was a politician as well as a lawyer, and that that circumstance affected his judgment; therefore I desire to draw attention to what was said by Mr. Justice Holroyd, who was an original thinker and powerful reasoner. The case of "Forbes v. Cochrane" was decided in 1834, but the subject-matter arose in 1814. This country was then at war with the United States, but was at peace with Spain. In 1814 Florida belonged to Spain, and was a slave country. The British Government had instructed their commanders to issue into slave states circulars inviting slaves to escape from their masters and join the British flag. These circulars, though not intended, got into Florida, and the consequence was that a number of slaves escaped from their masters in Florida and took refuge on board a British ship which was anchored in Georgian waters. We were at war with the United States, and the British forces had taken possession of Cumberland Island, close to the shore of Georgia. Under these circumstances, the slaves escaped to a ship forming part of Sir George Cockburn's squadron, and he refused to give them up. These were the facts of the case. There was no technical point in it; the Judges delivered judgment on the broadest and
  1560
  clearest grounds; and there are one or two of the more striking passages to which I would desire to call your Lordships' attention. Mr. Justice Holroyd said—
  "According to the principles of English law, the plaintiff's right to these persons cannot be considered as warranted by the general law of nature, nor can he maintain an action under that general law..… According to the principles of English law, the right to slaves even in a country where such rights are recognized by law must be considered as founded, not upon the law of nature, but upon the particular law of that country. The law of slavery is a law in invitum, and where a party gets out of the territory where it prevails and out of the power of his master, and gets under the protection of another Power, without any wrongful act done by the party giving that protection, the right of the master, which is founded on the municipal law of the particular place only, does not continue, and there is no right of action against a party who merely receives the slave in that country without doing any wrongful act.. In this case, indeed, the fugitives did not escape to any island belonging to England, but they went on board an English ship (which for this purpose may be considered a floating island), and in that ship they became subject to the English laws alone. They then stood in the same situation in this respect as if they had come to an island colonized by the English. It was not a wrongful act in the defendants to receive them; quite the contrary. The moment they got on board the English ship there was an end of any right which the plaintiff had by the Spanish laws acquired over them as slaves. They had got beyond the control of their master and beyond the territory where the law recognizing them as slaves prevailed. They were under the protection of another Power.…When they got out of the territory where they became slaves to the plaintiff, and out of his power and control, they were by the general law of nature made free, unless they were slaves by the particular law of the place where the defendant received them. They were not slaves by the law which prevailed on board the British ship of war."
  Quite as powerful passages, more rhetorically expressed, might be cited from the judgment of Mr. Justice Best; but it is quite true that in his judgment occurred that passage which the noble Earl opposite has referred to, and on which much stress is laid. The passage is this—it was contained in a parenthesis—
  "The moment they put their foot on board a British man-of-war not lying within the waters of Florida, where undoubtedly the laws of that country would prevail, those persons who formerly were slaves were free."
  That passage was quite rightly cited by the noble Earl. But I venture to think a great deal too much stress has been

  1561
  laid on that parenthesis, and if the case be looked into it will appear from the whole tenour of the argument that the question of what is called the ex-territoriality of the ship was not present to the mind of the learned Judge. With regard to that point, I should prefer to say that a public ship is exempt from the jurisdiction of the territory within which she claims to have the rights of hospitality exercised towards her; and that right was vindicated in the strongest way by Chief Justice Marshall in the case which has been referred to. If a ship is exempt from the jurisdiction of the territory into which she has come, I venture to think not only would the captain be justified in not surrendering a fugitive slave on board of her, but he would be utterly unjustified if he did surrender the slave; and the declaration by English Judges in the Courts on questions of this sort has this great value—that it is notice to all the world of what we have always asserted, and upon what terms we claim the right to the hospitality of friendly States who tolerate slavery if we enter their waters. If they object, it is for them to say they will not receive the ships of this country into their territorial waters until the claim they object to is either modified or withdrawn. When we come to this point we leave the domain of exactly scientific law and enter upon the general usage sanctioned by international comity. But international comity has its distinct and definite rules, and one of the rules of international comity, which as far as this country is concerned has, I apprehend, always been laid down in our Courts, and has always been maintained by our statesmen, is this—that we are not to be called upon, and if we are called upon we shall refuse, to lend our aid in any manner either to sanction or to enforce the detestable institution of slavery. A curious unanimity prevailed among the noble and learned Lords who sat in this House when the case of the Creole was dealt with in 1842. The Creole was a ship with a cargo of slaves. She was carrying those slaves from one of the Slave States to another of the Slave States in the United States of America. In the course of the voyage the slaves rose to liberate themselves. They put to death a man who resisted them; they possessed themselves of the ship, and they forced the captain and crew to navigate
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  the ship into a British port. This country persistently refused to give up any of those slaves, even those who had been concerned in homicide. I do not lay much stress upon that for this reason—it is probably or certainly to be explained on the ground that we had no Extradition Treaty between this country and America, and, therefore, whatever crime had been committed, they could not, according to the existing law, have been given up. But I find on a careful perusal of that most instructive debate that all the Law Lords in this House—Lord Brougham, Lord Denman, as might be expected, Lord Campbell, and Lord Lyndhurst—expressly declined to admit that the slaves had done anything wrong in repossessing themselves by force of that which all the learned Lords said was their natural position—namely, their liberty, of which they had been deprived, as the noble and learned Lords said, by a violation of the law of God.—[3 Hansard, lx. 313.] I wonder what any of those noble, learned, and illustrious persons would have said if they had heard a great and distinguished lawyer coupling escape from slavery and murder together, and saying that a person who escaped from slavery and a person who committed murder were equally breakers of law. I wonder what those great persons would have said if they had heard a still more distinguished man treating the laws of slavery—
  THE LORD CHANCELLOR: Are you referring to me?
  LORD COLERIDGE: Certainly not. I wonder what those noble and learned Lords would have said if they had heard a still more eminent man treating the laws of slavery and the laws of quarantine, forsooth! as equally binding upon foreign nations. If there is such an eminent lawyer, and if there is such a still more eminent person, all I can say is they may be thankful that Lord Brougham and his contemporaries slumber in the dust. One of the great objections to this Circular is the very existence of the Circular itself. What necessity was there for interfering with the existing state of things? What was the necessity for somewhat ostentatiously, as I cannot help thinking this Circular does, recognizing slavery? It recognizes the institution of slavery, because it talks of fugitive slaves as persons who have broken the law. Surely the subject

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  of not allowing a fugitive slave to remain on board when danger to life was over might have been left to the discretion of our officers and the wisdom of our statesmen. I form no opinion whether, in the case we have heard so much about, Lord Clarendon and Lord Palmerston did or did not come to a right determination; but I should have thought that in 99 cases out of 100—and probably the proportion might be much larger—they did right. It would be ridiculous to suppose that my noble and learned Friend on the Woolsack or the noble Earl opposite (the Earl of Derby) is in favour of slavery; but by this Circular they have hampered their own discretion and the discretion of the public officers of this country. It would be utter waste of time for me to attempt to go through the Slave Trade Acts of 1873. The answer to the point that has been raised respecting them is to be found in their description. They are Slave Trade Acts, and have nothing to do with domestic slaves who have escaped from slavery and have got on board English ships of war in the territorial waters of friendly slave-holding States; and I think that any person who has read them, and who really understands them, and who introduced them into this discussion, must have done so with the object of distracting our attention from the real point at issue. Most certainly I never understood it to be part of the law of England, or part of the International Law by which we are bound, that this country is compelled to support actively the institution of slavery. I hope that in dealing with this subject your Lord-ships will raise it above all Party considerations—and I am sure that it has not been discussed to-night as a Party question. Your Lordships, on both sides of the House, are capable of feeling how deeply the honour of the country is concerned in this matter. Could I for a moment free myself from the restraints of judicial office—could I revive for a moment the dying embers of Party feeling—I protest that nothing as a Party man could more delight me than to see this question voted upon by your Lord-ships in a Party spirit—so that the spectacle might be presented to the country of all the noble Lords on that side of the House voting in favour of maintaining this Circular, and all the noble Lords on this side protesting against it.
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  But, my Lords, I wish for nothing of the kind. I wish your Lordships to view this question from your high position as one on which liberty and freedom as opposed to tyranny and oppression depend, and as one in which the honour of the British Flag and of the British people who have made so many noble sacrifices on behalf of liberty is deeply concerned.
  THE EARL OF LAUDERDALEdenied that International Law had nothing to do with this question—on the contrary, he thought that International Law had everything to do with it. If we could get all other nations to agree to abolish slavery altogether, well and good; but unless we could do that, it would be absurd to attempt to put it down by force. If the captain of a man-of-war were to avow his intention to break the municipal law of the country, he would not be allowed to take his ship into its ports. We expressed a great horror of slavery in this country, but he should like to know from what part of the world the goods known as "slave goods," which were exclusively used for the purpose of purchasing slaves, came from? Why, they came from Manchester, Birmingham, and Sheffield—and it was not difficult to guess into whose pockets the price of the slaves went. He was of opinion that the Government had acted properly in transferring the onus of deciding this question of the treatment of fugitive slaves from the shoulders of naval officers to their own.
  LORD HATHERLEYdesired to add his protest to the continuance in force of the Circular which had formed the subject of this debate. He had heard no answer given to that question, first put by the noble Viscount who presented the Petition—Why, if they were to have a Commission to consider what appeared to the Government such a difficult question, but to himself and his friends such a simple one, should it be necessary, and so hastily, to publish this Circular? He contended that, as each question arose, whether in regard to slaves in the Gulf of Persia or on the coast of Africa, it could have been dealt with without issuing general Instructions to all our officers in all parts of the world. It was well known that, by the comity of nations, as regarded vessels of war, any officer whose acts were complained of must be dealt with by the nation to which the

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  ship belonged; and it was also well known to foreign nations that the mind, and heart, and conscience of the British nation had long ago settled that slavery should not exist. He could see no reason for keeping the Circular in force pending the inquiry of a Commission which had been appointed for the purpose of codifying the law relating to negro slavery; nor could he perceive how the existence of slavery was likely to be shortened by the operation of a Circular which forbad officers of British ships taking slaves on board unless they were in peril of their lives, and then instructed them to put such slaves ashore, but did not inform them as to where the debarkation was to be accomplished. He submitted, then, that this Circular should be at once withdrawn by the Government—a Government so strong that it could afford to withdraw it—and by so doing that they would be entitled to the thanks and gratitude of the whole nation.
  Petition ordered to lie on the Table.
  House adjourned at half past Ten o'clock, to Thursday next, half past Ten o'clock.