| when these claims have been brought be- | justice whatever in the claims which are fore the House, there has been stated, in submitted to the House. Sir, this House the course of the debate, some new cir- has very wisely determined that they will cumstance apparently calculated to influ- not admit any grant of money, or any reence the decision of the House, adduced at mission of duties due to the Crown, unless a period when it is difficult to afford a reply it come down to the House recommended to them-statements are made for the pur- by the respectful suggestion of the Crown; pose of inducing the House to support the and they have done it for the best of all propositions which are made to them with reasons, in order that the House may not respect to these claims, yet on another day be imposed upon by specious or plausible those very statements turn out to be alto- statements made in the course of a debate gether void of a just foundation, and to be on an uninvestigated claim. The object of such as should not influence the decision of that determination has been, that individual the House. Now, for instance, on the for- Members may not be influenced-that they mer occasion the hon. Gentleman opposite, may not rashly vote away the money of the in the course of his reply, adduced an addi- people to parties who, by means of great tional argument which we had not heard exertion, active canvassing, and constant of before the support of these claims. He representation of facts more or less accudid not for a moment dispute that there had rate, have acquired an influence over the been a war between Great Britain and Den- minds of Members, and who persuade them mark; but he stated that a declaration to vote away the public money. And, Sir, was made in the same year which cured the this House has laid down a wise rule, and previous declaration of war, and restored I am not quite prepared to get rid of it by peace to Denmark; and that, therefore, a side-wind proceeding. When the case Great Britain made no attempt to declare was submitted to the predecessors in the the illegality of the capture, because the office that I hold, and when it had been declaration of war was not issued until No- submitted to me also, we each of us, acting vember. He impressed, therefore, upon under a sense of our public duty-which is the House that it was just and proper that not to recommend to Parliament to make a the House should restore to their former grant of money unless we are satisfied that position those persons that had suffered in the grounds on which the claim is made consequence of the war. But, Sir, was are just-have refused to assent to the pethere no foundation for that judgment? tition to this House praying for the grantOf course, when Copenhagen was surren- ing of these claims. And upon the same dered, there was a capitulation which pro- principle, I will not willingly consent that vided for the restoration of such goods as the Crown should be placed in the situation had been taken during the war. The Danish of having an address presented to it, when Government itself issued an order in which the Crown has not been advised to recomit was stated that during the war certain mend to Parliament the payment of these regulations were to be observed as to Eng- claims. Sir, this is a very dangerous exlish subjects, expressly nullifying the asser-periment. It is, in fact, virtually getting tion of the hon. Gentleman, when he wished the House to believe that these capitulations were not made during the war; expressly nullifying the declaration of the Government in seven days afterwards, that the war was then in force, and that certain hostile measures with respect to British subjects were to be taken in consequence of the war. A new case was adduced by the hon. Gentleman on the former occasion, for the purpose of inducing the House to agree to his propositions. Sir, I have thought it my duty on various occasions to oppose an Address to the Crown for the purpose of remunerating the claimants on account of the Danish losses; and I have done so, Sir, first, upon what I consider to be a most important constitutional principle; and next, because I do not admit that there is any rid of the control which the House has established for the purpose of preventing an undue expenditure of the publie money. It is truly a dangerous experiment, because it would not put a limit to the extent to which these claims may go. If during the war with Denmark you are prepared to give the sufferers by that war the sum of 250,000l., or a quarter of a million of money, because the country with whom you were at war did not make certain regulations as to the capture during the war, there is no telling to what extent these claims may now, and at future times be made; for if the principle of this grant of money is good with regard to Denmark, the principle is good with respect to every country with which you may be at war, whatever their position may be, and however ample their means as to trade; and I say, therefore, that it is the duty of those who have any care for the mode in which the public money is to be expended, to oppose this first step, which shall introduce this new principle that you are to indemnify your own subjects for losses at sea during a war between this and any other nation. Sir, observe I am not here standing up to defend the rights of the Crown. I am defending the rights of the people of this country generally. You tell me there is justice in the claims of these individuals whose property has been sacrificed at sea; and that those merchants, who have lost their ships and cargoes during the war, have sustained a loss for which you are bound to show them some commiseration, and to make them some compensation. Sir, whether it be right or wrong, captures at sea during war are the invariable practice of nations, and that, as a totally different question from captures on land, is not the question now before the House. The right hon. Gentleman concluded by moving that the House will, on this day six months, resolve itself into the said Committee. MR. HAWES said, the right hon. Gentleman the Chancellor of the Exchequer had made a somewhat novel discovery, that, as a question was debated year after year, new arguments were advanced in favour of it. There was a distinct opinion from the Solicitor General that there was no declaration of war on the part of Denmark, which he should take the liberty of reading to the House: - "I am of opinion that the instrument of the 16th of August, to which reference has been made, is not a declaration of war, and that it merely orders an embargo on British ships, and not the confiscation of them. There is a distinction between an embargo and a confiscation. It is stated by the law of England and of nations, that an embargo directs only the detention of the property from the owner; and a confiscation takes away the property altogether. There is nothing in the instrument in question which authorizes the taking away permanently any British property." The right hon. Gentleman assumed the justice of the war, and that Denmark declared war. If that were so, all he could say was, that every State paper published at the time was in contradiction to the assumption. The Danish Minister did not leave till the 20th of November. The Danish Government had not confiscated any of our property until we had commenced to confiscate theirs; and negotia tions continued long after the time it was asserted the war had broken out. The case of America, which had been referred to, was altogether different, for there no one doubted that a declaration of war had been made. But the right hon. the Chancellor of the Exchequer said there was no surplus; and, therefore, if any payments were made they must come out of the public purse. He was not so sure that no surplus could be found; but even if that were so, why did the Government refer these claims to adjudication, and call on the parties to produce proofs? Let it be remembered that the Government had been beaten by the decision of the House of Commons on five successive occasions. At length the matter was referred to Commissioners. What did they do? They called all the parties before them, and ultimately cut down their claims, 425,000l. to 225,000l. If the claims which they had adjudicated upon and adjusted were legal, and these not, he would admit the force of the opposition now made to his Motion; but they had the opinion of the late Sir W. Follett, that the former claims were not of a legal but of an equitable nature; and these present claims stood precisely in the same situation. The only strong arguments urged against these claims came from his hon. and learned Friend behind him (Sir T. Wilde), and rested on the assumption that there had been a declaration of war. But supposing that there had been a declaration of war, there remained the convention of the 7th of September to be got over. If there had been a declaration of war, why were not seizures made instead of being detained pending negotiaat once, and ships confiscated and sold, tions? But he would not argue the question on technical grounds: he called on the right hon. Gentleman to take an enlarged view of the interests of British merchants and shipowners, and not to allow innocent parties to suffer on account of the sudden adoption, on the part of the Government, of a policy deemed necessary to counteract the designs of Napoleon at the time when these transactions occurred. It had been stated that a proclamation had been issued, warning parties of the danger of hostilities; but against this was to be set the subsequent declaration of the British authorities, that the two countries were not in a state of hostility, and the continued residence of the Minister at our Court. He trusted that some of the law officers of the Crown would think it worth while to answer his call, and by disposing of his argument and understand them." So much then for render it unnecessary for him to divide. the weight which the opinion of his hon. MR. CARDWELL: The hon. Member Friend the Solicitor General, upon an ex who had just addressed the House, com- parte case submitted to him as a lawyer, plained in one part of his speech, that this was supposed to have in this discussion. question had never yet been settled by a Well, but the hon. Member asked, "How fair and comprehensive discussion of it can the House of Commons, which in two upon its strictly legal grounds; while in former cases has admitted these very claims, another part of his speech he invited the now stand upon some legal technicality, and House to look away from the dry techni- refuse, in the present, the measure of juscalities of law to equitable considerations tice they have accorded in the former inand substantial merits. He was will- stances?" He gladly joined issue on this. ing to meet the hon. Member upon either question, for it brought them at once to the issue; and when he attached so much im- vitals and marrow of the subject. The portance to the opinion of his hon. Friend hon. Member insisted that the several the Solicitor General, which with some os- claims were identical in principle. Sir tentation he had read to the House, he James Macintosh and the able jurisprumust be permitted to inform the hon. Mem- dents upon whose arguments the former ber that nothing was so easy as to obtain claims had been sustained, carefully repufrom a lawyer an opinion favourable to your diated the identity; for they knew that in own view. For how was a lawyer's opin- regard to the claims now under discussion ion taken upon a case submitted? It had there existed a conclusive answer, which, become a proverb that you could attach no if the identity had been admitted, must of weight to the opinion of the most eminent course have been fatal to the whole. Sir lawyer, unless you saw the statement laid James Macintosh therefore drew, as the before him as containing the facts upon House was now called upon to draw, the which that opinion had been obtained. widest distinction between the cases. Sir Now he (Mr. Cardwell) had had an oppor- James Macintosh rested his whole argutunity of seeing the facts stated to the ments upon this broad principle: "If you, Solicitor General, and the question put to the Imperial Government, fail to secure to him. He did not hesitate to say that your subjects the observance by other naupon facts so stated, in answer to a question tions of the rights of international law, you so put, his hon. Friend could not by pos- are bound to obtain from the nation that sibility have given a different answer. And breaks the law compensation to the peryet the opinion so obtained did not affect sons who have been injured; and if, from in the least the decision at which the House any political considerations of your own, should arrive. Was he without an instance you decline to discharge this duty, and to even in this very question of the Danish enforce this compensation, you, the ImpeClaims? For the purpose of dressing up rial Government, and not the private pertheir case, the claimants had obtained a sons, must bear the cost of these political favourable opinion from a lawyer not less considerations; or, in other words, you eminent even than his hon. Friend the So- must pay from the Imperial Exchequer the licitor General. Sir W. Follett, upon a compensation you have failed to obtain from case submitted to him, had advised in fa- the proper quarter." This was the princivour of the claims. Did that opinion con- ple of Sir James Macintosh upon which clude Sir W. Follett in his higher capacity Parliament had conceded the two former of a Member of that House? On the con- classes of claims. Now let the House obtrary Sir W. Follett, having then no con- serve the real point in issue. Upon the nexion with office, and no peculiar regard arrival of Lord Gambier in the Baltic, and for the view taken at the Treasury, came during his presence there, and subsedown to the House of Commons, heard the quently, the Danish Government had concomprehensive statement made by the then fiscated three classes of goods, the proAttorney General, the Member for Wor-perty of British subjects, viz.: -1st, cester; and what was the course he took? He declined to give his vote in Parliament in accordance with his written opinion as a lawyer. He said, "I advised upon the case submitted to me; but I must act in the House of Commons upon the actual facts and merits of the case as I now hear Goods on shore in Denmark; 2d, Book debts owing to British subjects; and 3rdly. The matter now in hand, vessels, and goods on board of vessels. But by the rules of international law a Government is not entitled, etiam flagrante bello, to confiscate goods on shore, nor book debts. {COMMONS} Danish Claims. 204 discussions had escaped the preceding ad- safety of Copenhagen, and to extend only In these two cases, therefore, there was a clear invasion of the law of nations. We had not thought it expedient to enforce compensation from Denmark; and, applying the principle of Sir James Macintosh, the House of Commons had granted to the ties injured compensation from the Impeparrial Exchequer. But how stood the law of nations as to vessels, and goods on board of vessels ? That in the event of war, they are the proper subject of confiscation. To sustain his case, therefore, with regard to them, the hon. Member knew he must meet, and he had attempted to meet, the issue-Was there, or was there not, war? Now, he (Mr. Cardwell) thought this was no way narrow or refined, but a wide and sub-cument issued on the 9th September, two stantial distinction. War, or no war, in days after the former, which disposed of the two first cases the law of nations had this notable discovery. It was a document been infringed; in the third, the question issued by the Danish Government, and simply was- Was there a war, or not? containing directions as to the conduct to The hon. Member said, at the time the be observed by their officers during what seizures were made there was Now, these seizures were all made subse-ion, therefore, of the Danish Government no war. they call "this present war." The opinquently to the date of the document which as to its relations with Great Britain was he held in his hand. That document had beyond dispute. been often quoted in the course of these de-ion of Great Britain? The hon. Member, Now what was the opinbates. It was issued by the Danish Go- adverting to the document of the 4th Novernment on the 16th August; and it re-vember, had stated with some triumph that ferred expressly to the hostilities actually this was not a declaration of war-that subsisting between the countries. hon. Member said this document, if it did deceived by an erroneous heading in the But the the advocates of the Treasury had been amount to a declaration of war, was cured Annual Register-and that it was in fact a by another document subsequently signed proclamation of reprisal. He (Mr. Cardwell) between the parties. Now some hon. Mem-cheerfully admitted the correctness of the bers of that House were present in the distinction. It strengthened his argument. fleet of Lord Gambier. They could testify The document was not strictly speaking a to the occurrences of the 2nd September. declaration of war-it was a proclamation The hon. Member for Lambeth said, that of reprisal. It was not, as he had already before that date there had been on the part shown, the custom of Great Britain to issue of Great Britain no declaration of war. That was not the question. a formal declaration of war. was not-Was there a declaration of war? sal? Was it during peace? Or did not a proThe question Great Britain issue a proclamation of repriBut when did -but, was there war? The campaign of clamation of reprisal necessarily imply on the Waterloo was preceded on the part of Great part of Great Britain the acknowledgment Britain by no declaration of war. the hon. Member inform the House what on existed in fact-clearly war was proved to Would of an existing war? Clearly, then, war the 18th June 1815 were the relations sub- have been recognized as actually subsisting sisting between Great Britain and the by the official documents of both the belliFrench Emperor? Were they the relations gerent parties. But if war subsisted, vesof peace, because there had been no formal sels and goods on board of vessels, were by declaration, or were they not the relations the rules of international law the proper of war? On the 2nd September, 1807, subjects of confiscation; and if so, then in the bombardment of Copenhagen was com-respect of the case advocated by the hon. menced. What, then, on that day were the relations between Denmark and Great Britain? But, said the hon. Member, admitting war on the 2nd, there was peace on the 7th September. And the hon. Member, with admirable ingenuity inventing a Member, no breach of that law had been the whole case, and was to the hon. Mem- The House divided on the Question, that the word "now" stand part of the Question:-Ayes 58; Noes 85: Majority 27. List of the AYES. swer. There was, however, further evi- | But I would say on this occasion that you dence that the Treasury had not been ac- have spent sums of money in ornamenting tuated by a narrow desire to resist a claim, Trafalgar-square and other public places; when it determined the question of peace but that it would be much better for you to and war. In 1810 claims had been made be just before you become generous. I do upon the Treasury, the justice of which de- look upon this whole transaction as a mean pended upon a coarser argument; the one on the part of the Government. Your Treasury, deciding against the interests merchants, who are paying an income tax of the Exchequer, ruled that there had been of five millions a year, have a right that a war, and paid the claims. To that de- their property should be protected. Let cision, so taken, when it told in favour of us pay our debts, and when we have a surthe claimant and against the public, the plus let us give away. This will be the Treasury had uniformly adhered. Suc- proper mode of proceeding with our busiceeding Governments and different law offi- ness. I have nothing whatever to do with cers of the Crown had confirmed the deci- these claims; I am no way interested in sion with a unanimous voice. Sir James them; but I think them founded on justice, Macintosh, in advocating the other claims, and as such ought to be discharged. had carefully disconnected them with these, resting as they did upon grounds on which he could not venture to rely. This decision the hon. Member invited the House now for the first time to overthrow. The hon. Member said, this claim had always been kept alive. He (Mr. Cardwell), on the contrary, said, that while the other claims were under the consideration of Parliament, this claim had been advisedly and wisely kept in the back ground. Ile believed that in 1838, the war having ocBaskerville, T. B. M. curred in 1807, the other claims having Bowring, Dr. Beresford, M. been brought to a successful issue, the ad- Bridgeman, II. vocates of this claim had first ventured to Broadley, H. submit it to the House of Commons. He Christie, W. D. believed it was unfounded in law-that on Chute, W. L. W. Craig, W. G. the score of equity it had no distinctive me- Crawford, W. S. rits—that in policy the precedent would be Douglas, Sir II, most dangerous, opening the door for ap-Duncan, C G. peals, not to the justice but to the compassion of the House, for calamities unavoidably sustained in former wars, at however great a distance of time; and under the obligation of an imperative sense of duty, he without any hesitation supported the Motion of his right hon. Friend, that the House resolve itself into a Committee on this question this day six months. I COLONEL SIBTHORP: I wish to call the attention of the House to those Members who did vote upon the question in 1841, and who are not present now. find that, on the occasion of the division in that year (1841), the ayes were 127, and the noes 96; and I find on that occasion the names of the following gentlemen, who are not present now:-The Solicitor General (Sir Fitzroy Kelly), Sir Frederick French, the Attorney General, Sir Charles Douglas, and Lord Eliot, who is now Lord St. Germans. Where are all the hon. Gentlemen gone? Will no one tell me? Aglionby, H. A. Evans, Sir De Lacy Etwall, R. Irton, S. McCarthy, A. Matheson, J. Norreys, Lord Plumridge, Capt. Rumbold, C. E. Wakley, T. Ward, II. G. Wawn, J. T. Williams, W. TELLERS. Hawes, B. List of the NOES. |