§ MR. MONTAGU CHAMBERS
rose to call the attention of the House to certain treaties and conventions between the Governments of France and England in the years 1814, 1815, and 1818, for making compensation to British subjects whose property was confiscated by the French Revolutionary tribunals, and to move the following Resolution—That the national good faith requires that the just claims of Baron de Bode, established after protracted investigation, should be satisfied.The hon. and learned Gentleman commenced by adverting to the state of the House in which he now rose to bring forward his Motion, which he hoped was an augury of its successful result. The name of the individual on whose behalf he came forward must be well known to all; —but it was not merely on account of the wrongs of the Baron de Bode that he had made this Motion; the case was one which closely touched the honour of Great Britain, and it was that consideration mainly which had induced him to undertake the advocacy of this claim. The treaties to which, according to the terms of his Motion, he was about to call the attention of the House, were the treaties of 1814 and 1815, entered into between England and France, when the Bourbons returned to the Govern- 393 ment of France. By Article 19 of the treaty of peace, signed on the 30th of May, 1814, the French Government engaged to liquidate and pay all debts which might be found to he owing by them to persons out of their own territory. There was also an additional Article 4, by which prevision was made for the satisfaction of all cases of wrongful confiscation of "property, moveable or unmoveable, unduly confiscated" by the Revolution any Government, belonging to British subjects. The treaty of 1814 was interrupted fur a short time; but in 1815 a definitive treaty of peace was concluded, and Convention No. 7 of this treaty set forth again the great desire which France had of completely indemnifying all British subjects whose property had been unduly confiscated by the revolutionary tribunals. By all article of the latter convention provision was made appointing four French Commissioners and four English Commissioners as a mixed Commission, to whose account was carried by the French Government a large guarantee fund of many millions, for the purpose of meeting all claims coming within the meaning of the stipulation. In 1818, when the army of occupation was about to leave France, a new arrangement was come to in reference to the liquidation of these debts due from France to English subjects, and a large sum of money in addition to that already handed over to the mixed Commission was transferred to certain English Commissioners, the English Government undertaking to liquidate all claims that had been made and admitted by the mixed Commission as claims proceeding from English subjects. An Act of Parliament was passed, the 59 Geo. III. c. 31, for the purpose of carrying into effect the convention of 1818, and the English Commissioners acted under that convention and under the Act of Parliament. Between 1815 and 1818 the British and French Commissioners had received certain claims, and amongst them was the claim of Clement Baron de Bode—and he would say that that claim was as solid and valid as the claim of any English gentleman to his estate. The father of Clement de Bode, Charles de Bode, a German, was married in England to Miss Kynnersley, an English lady of considerable property; and in 1777, Clement, the present claimant, was born at Locksley, in Staffordshire, and was baptized at Uttoxeter in the same county. There was no doubt, therefore, that Clement was to all intents and purposes a British subject, and quite as 394 much so as if both his parents had been British born. His father, Charles Baron de Bode, was all officer in the German regiment of Nassau in the service of France—in which none but Germans served—and that circumstance, therefore, did not alter his character as a German subject. Baron Charles possessed some property in Germany; but in 1788 he purchased a. castle and estate, situated in Lower Alsace, which being an ancient German male fief both father and son took a vested interes in it. By the treaty of Minister, however, Lower Alsace was annexed to France, with the express provision that all the German tenures should, remain inviolate. In 1791, Baron Charles, dreading the wrath of the revolutionary chiefs, surrendered his estate to his son Clement, in the most solemn and public manner. In 1793 the Baron and his son found it necessary to emigrate from the French territory; on which it was decreed by the French authorities that the estate should be forfeited as having been abandoned. In 1797 the Baron Charles died. For some time doubts were entertained whether the forfeiture of the estates of British emigrants was an undue confiscation within the meaning of the convention. That question, however, had long been settled, and it was allowed that the terms of the conventions included their case. In 1815, Baron Clement returned to France; and then through Count Pozzo di Bongo his claim was submitted to the Due de Richelieu, then Prime Minister of France. It had been stipulated, however, that only three months from the 24th of November, 1815, should be allowed for claimants for compensation, resident in Europe, to make their claims, while, singularly enough, the British Commissioners were not appointed until the month of December, 1815, and they did not arrive in Paris until the succeeding January; there was, therefore, but a very short period allowed for persons residing in Europe to make their claims. On seeing the claim of the Baron de Bode, the Due de Richelieu fell into the strange mistake of supposing that the father of the claimant being a German, he could not claim as a British subject; but this error was subsequently corrected by Sir Charles Stuart, the British Ambassador. The mistake caused some delay, and the consequence was that the time had elapsed for the making of claims before that on behalf of tile Baron de Bode could be included in the list sent in to the Commissioners. An understanding was, however, come to 395 between the Due de Richelieu, the British Ambassador, and the two classes of Commissioners, by which the mistake in question was not permitted to weigh against the claims of the Baron de Bode. Between 1815 and 1818 the Commissioners placed upon the registry some sixteen claims of British subjects, and up to the year 1818 the Baron was under the impression that his claim had been duly registered by the Commissioners In that year the agreement already stated was made between the two Governments, by Which France was relieved from liability, and a very large sum of money was handed over to the British Commissioners for the purpose of satisfying all claims; and that the claim of Baron Clement de Bode was included in the amount, and intended to be liquidated, no doubt could now be entertained. An important document had come to light on the question, showing the purposes to which these funds were applicable. The document in question was a letter from M. Guizot, which was sent in 1847 to the present Baron de Bode, and in it M. Guizot distinctly stated that he had looked through the archives and records of the mixed Commission, and he found it there recorded that between the two sets of Commissioners Baron de Bode's claim had been admitted. Independently of this, in ascertaining to what purposes the funds handed over to the Commissioners were to be applied, it was of the greatest importance to call attention to the fact that there was a misrecital in the Statute of the 59 Geo. III., in reference to what was the real convention between the French and English nations; and if so, that recital could not be quoted against the claim. The convention really ran thus—In order to effect the payment and entire extinction as well of the capital as of the interest due to the subjects of His Britannic Majesty, and of which the payment had been claimed by virtue of the additional articles of the treaty of the 12th of November, 1815, there shall be subscribed a certain sum of money.So that from this it was evident that the fund was to effect the entire extinction of the claims that had been made—not merely the claims that had been registered. In the Statute, however, it was recited that by the convention only those claims could be dealt with that had been duly registered. This was the first and last legal difficulty which interposed to prevent justice being done in this case—he meant the erroneous recital of the Statute. In 1819 the British Commissioners commenced their duties, and 396 they seemed to have fallen into two or three curious errors—one was with respect to the estate in Alsace not being, in point of fact, within the territory of France. They read the claim, and, finding the estate described as an ancient German male fief, they said the Baron de Bode could have no claim, as the estate must have been in Germany, and not in France. They then required documents, muniments of title, and proofs which it was impossible to bring forward, inasmuch as the Baron's castle was sacked at the time of the Revolution, and his muniments of title destroyed. Subsequently, a notice was sent by the secretary to the Commissioners requiring the claimant's solicitor to establish by proof that the property had been forfeited by reason of the Baron de Bode being a British subject. Now, this was not in accordance with the treaty, which purported to give ample imdemnity and compensation to all persons who were actually British subjects whose property had been unduly forfeited, without reference to the fact that the property was forfeited on the ground that the owner was a British subject. The Baron went abroad in order to obtain further evidence as to his title, and the application for these proofs was again made by the Commissioners, and also for proof that the cession of the estate by the father Charles to the claimant was, in point of fact, a notorious, open, and bonâ fide cession. Receiving no proof that the property was seized because the claimant was a British subject, the Commissioners gave their award against him. The Baron then appealed to the Privy Council, but, having been told that if he attempted to use further evidence his appeal would be dismissed, he went before the Privy Council without proof that the cession in 1791 was open, notorious, and bonâ fide. The Privy Council confirmed the award of the Commissioners, and a rehearing was then prayed for, which was refused on the ground that the jurisdiction of the Pril'y Council had departed. He would not fatigue the House by going through all the means which had been resorted to subsequently to obtain redress. The French Government were appealed to, but their answer was prompt and conclusive, that ample funds had been entrusted to the British Commissioners to satisfy this demand. In the year 1827, a large surplus being then in the hands of the Commissioners to the credit of the claimants for compensation, a sum of 250,000l. was handed over for the purpose of assisting in the repairs of Buck- 397 ingham Palace. Baron de Bode's case was brought forward in the House of Commons in the year 1828 by Mr. Michael Angelo Taylor, and a debate ensued; but it was attended with no satisfactory result. The object of the arrangement entered into by the convention was, that the very last farthing of the money handed over to this country should, if necessary, be expended towards satisfying the demands of just claimants; and only after such claims were satisfied, if any balance should remain, might it be devoted to the service of the British public. Subsequently, however, a Commission was established, and another class of claimants, who had not sent in within the prescribed time any requisition, was admitted. That Commission, and those other claimants to whom he referred, were brought forward by some of the most eminent men then in the House, amongst whom were the noble Lord the President of the Council and the late Sir Bogert Peel. In 1831 the Commissioners proceeded to adjudicate, and they rejected the claim of Baron de Bode. That Commission was dissolved anterior to the year 1834, having, contrary to the terms of the Convention misappropriated a very large amount of the fund. The Baron was, therefore, obliged to resort to other assistance with the view of bringing his case before Parliament. Serjeant Wilde (the present Lord Truro) undertook this duty, and several times during the Session endeavoured to procure a hearing upon the subject; but that distinguished lawyer failed, from the circumstance of no House being made at one time and the House being counted out at another. The Parliament was subsequently dissolved, and Serjeant Wilde lost his seat. Mr. Matthew Davenport Hill, another eminent lawyer, then took un the case, and succeeded in getting a Committee. That Committee sat, and having extended their inquiry to a new class of claimants, who threw every impediment possible in the way of Baron de Bode, they had not closed their labours at the termination of Parliament. Mr. Warburton in the next Session succeeded in getting a hearing in Parliament, but he also was ultimately unsuccessful in the attainment of his object. The next course taken was one of a different character. As the money had passed into the hands of the Treasury, an application was made to the Court of Queen's Bench for a writ. of mandamus directed to the Lords of the Treasury, commanding them to pay over the amount of money due by them to the 398 Baron de Bode. That application was refused, on the ground that the Lords of the Treasury were simply the public servants of the Crown—that they represented the Crown—and that when the Crown issued a writ to the Lords of the Treasury, it was in effect issuing a writ to itself, commanding it to do such and such thing. Serjeant Manning then suggested a course to Baron do Bode in order to obtain justice—namely, the remedy that was known in this country by the title of a petition of right. That step was accordingly taken, and the Crown endorsed upon this petition of right the words, "Let right be done." An inquiry thereupon took place. The Lord Chancellor appointed certain Commissioners. Twenty-four jurors were appointed. Out of these, fourteen appeared and with them five Commissioners of great legal attainments were appointed. Baron de Bode proceeded to state the full particulars of his case. The Crown did not appear to cross-examine any of his witnesses or to raise any objections; but they used their utmost endeavours to discover a blot or a link wanting in the chain of evidence. The jury, however, found most distinctly everything in favour of the claimant. They found that he was a British subject, that he had property in France, that it was confiscated, and that the value of it was upwards of 300,000l. They further found that there was remaining in the hands of the Lords of the Treasury between 300,000l. and 400,000l. that were properly appropriable to the liquidation of his claim. The law officers of the Crown took objections to the finding. They first pleaded a general traverse—that is to say, they denied all the facts found in that inquisition; and then they pleaded the Statute of Limitations—that is to say, that the grievances or cause of complaint had not arisen within six years from that time. Now, the claim certainly arose so far back as 1815, or, at all events, in 1822. The Crown further pleaded that the cause of complaint had not arisen during the reign of Her Most Gracious Majesty. It was true that Her Majesty was not even born when this claim first arose, and she was but an infant in 1822. A trial at bar took place to try the validity of those pleas. That trial lasted four days. The strongest evidence was produced on the part of the claimant, that the cession of the estate to the young Baron, in 1791, was a bonâ fide cession, that it had been witnessed by 300 or 400 persons, and had been accompanied by all the ancient feudal 399 ceremonies required in the case of such a transfer. The Crown counsel did not call any witnesses; but addressed the jury in support of the pleas; and the result was a finding of all the facts in favour of the Baron de Bode. But the sum of between 300,000l. and 400,000l., received by our Government from France to meet such claims, having been paid over from the Treasury into the Bank, and it not being found that it came into the personal possession of the Crown, the decision was, that the claimant had no ground for his claim on petition of right, the assumption on which a petition of right was based being, that the money claimed by the subject came actually into the hands of the Sovereign. A writ of error was then brought into the Exchequer Chamber, when it was alleged, and successfully alleged, by the advisers of the Crown, that the Statute of 59 Geo. III. recited that it was necessary that the party should be on the registry of claimants—that Commissioners had been appointed to decide on the claims so registered—that the Commission either had or had not decided, and that the Treasury or the Crown could not be called upon, excepting as a matter of grace and favour, to entertain any claim which had not been duly registered. Thus all this series of failure had arisen from the unfortunate and erroneous recital of the Statute with respect to the necessity of the claim being registered. The result of this proceeding on the part of the Crown was, that the Baron's claim was again defeated. The Baron then took the ease to the House of Lords, where it was again argued before the Judges, and in the judgment which they pronounced they stated that the law of the land was rigorous upon the point, and they were, therefore, compelled to confirm the decision of the Court of Exchequer. One of the law Lords who gave that judgment, though as a Judge he was bound to decide against the claimant, yet felt as a man the cruel injustice of the decision; and being convinced of the equity of the claim, Lord Lyndhurst, as soon as he could throw off his character of Judge—that was, in the succeeding Session of Parliament—brought the ease before the House of Lords, and vindicated the claim of the Baron de Bode in a speech remarkable for its ability, succinctness, and argumentative power. The noble and learned Lord obtained a Committee, which sat and heard evidence, and drew up an admirable and conclusive Report, which he hoped every hon. Member had read. Nothing, however, was 400 done last year, and as it was thought that the question ought to be again brought before the House of Commons, he (Mr. M. Chambers), a private Member, had willingly consented to state the wrongs of the Baron de Bode to the House. The questions usually put, and which showed why this claim had been so long evaded, generally were—what is the amount? how can it be liquidated? and where is the money to come from? There were several large sums of money available for the purpose of payment; but the question was one which sensibly affected the national honour; and with shame he had seen it described in foreign journals as an act of English repudiation. Now, let not the House attribute this reproach to a spirit of hatred to this country, or a wish to find fault with us—Lay not that flattering unction to your soul, That not your sin, but my madness speaks: It will but skin and film the ulcerous place; Whiles rank corruption, mining all within, Infects unseen.He was told that this novel idea was to be started—that Baron do Bode was not, within the meaning of the convention, a British subject. That point, however, was settled as long ago as 1817, when Sir S. Romilly pronounced his opinion upon it. If, however, they said that the Baron was not a British subject, let them perform an act of common honesty by addressing the French Government upon the subject; and, by saying to them, that, inasmuch as Baron do Bode was not a British subject, they returned to France the money it handed to them to meet the claim, as they felt they were bound in honour and good faith to do so. What, then, were they to do in respect to this claim? The answer was simply, "Do justice." All he asked of them was that they should do justice. He came not there because this was a legal claim. If it were simply a legal claim, the ordinary tribunals of the country would assert and satisfy it. But, as those tribunals were inefficient to meet this case—as there had been unfortunately a legislative mistake committed in respect to it—as every effort had been made ineffectually to correct such mistake—as the demand was acknowledged to be just by every right-minded man, he submitted to the House that the claimant was fully deserving of their interposition and protection.
§ MR. DRUMMOND
rose to second the Motion, and observed that, like the hon. and learned Gentleman who had just sat down, he would not argue the question on 401 legal grounds, inasmuch as every legal point had been fully established before proper tribunals; and, above all, it had been summed up last year by a lawyer of distinguished eminence (Lord Lyndhurst), who seemed to increase in acuteness and perspicuity as much as he increased in years. He (Mr. Drummond) spoke to English gentlemen, and he asserted that the Baron de Bode had had arrayed against him every trick mid quibble which legal ingenuity could invent, and the excuse for all this had been, that we had not got the money to pay him. They had not got the money to pay him! And so they pretended, in the face of Europe, that we were obliged to rob a man! They had not the excuse of the French Revolutionists, who had some provocation, and moreover some justice, on their side. They had none. They were not one whit better than the issuers of the Pennsylvanian bonds, or than their new ally when he took the Orleans' property. He was afraid the example was catching—it was a bad thing to keep bad company. By what possible right did they refuse this claim? They piqued themselves upon being very jealous in keeping faith with the public creditor; and well they might, when they had some suspicion that if they did not they might lose something by the bargain. Why did they not keep faith with this public creditor? If they did not, it was in vain to suppose that foreign nations would not speak of them as they had spoken of foreigners who acted in the same way. There was no question whatever that no man of honour in that House in an individual capacity would refuse this claim, and he appealed from lawyers and the law, from one Chancellor of the Exchequer after another, and from one Solicitor General and Attorney General after another, to honest gentlemen of England, to say whether they were not bound to satisfy the claim of the Baron de Bode?
THE ATTORNEY GENERAL
said, he must detain the House for a few moments in relation to what had fallen from the hon. Member for West Surrey, and lie asserted, in the most emphatic and sincere manner, that, if he really believed this claim to be a just one, he would not stand up and disgrace himself as a gentleman and a lawyer by taking the unworthy course which the hon. Gentleman, with that freedom and carelessness of expression and utter disregard of other people's feelings which so often characterised him, had imputed to all Governments, to all 402 Attorney Generals, and to all Solicitor Generals whatever. He had entered on the inquiry with respect to the Baron de Bode's claim with every disposition to sympathise with him; but he considered that it was his duty as an officer of the Crown to advise the Government according to the best of his ability and the dictates of his conscience with respect to any claims made upon it; and he said with the most perfect sincerity, that he had satisfied himself, and he believed lie should convince the House, that the claim in question had no solid foundation. It rested entirely upon the treaties of Paris in 1814 and 1815 which comprised an entire convention between this country and France. As was well known, the treaty of 1815 became necessary in consequence of the sudden eruption of Napoleon, and that of 1815 arose out of the subsequent political events. Both those treaties were founded upon wrongs which had been done to British subjects in contravention of the treaty of 1786 between England and France, which guaranteed their rights of person and property, and which were violated in the Revolution that commenced in 1793. The House must observe that the persons for whose indemnification the French Government afterwards paid the sum of 3,000,000l.—or rather inscribed the sum of 3,000,000l. upon the debt book of France—were British subjects whose properties had been confiscated since the 1st January, 1793, in contravention of the 2nd Article of the treaty of commerce of 1786. The treaty of 1786, which was one of commerce and navigation, provided, by the second article, that in the event of any future rupture between the two Governments, British subjects should have the privilege of remaining in France and enjoying their property, subject to the laws, as long as they remained peaceable; and that if the French Government should take umbrage at such persons, in order to remove them they should give them twelve months' notice to enable them to realise their effects. Now, the only question in this case was, whether the Baron de Bode came within the operation of that treaty. It was not whether he was a British subject, but whether he was a British subject within the terms of the treaty. The French Revolutionary Government, in direct violation of the treaty, confiscated by decree the whole of the British property in France; the Baron de Bode was a British subject in this sense—that, by the accident of his birth, he happened to be born in England. 403 [Laughter.] If hon. Members would listen, they would find there was no absurdity in what he was saying. The Baron's father, who lived in France, had come to this country, where he married an English wife; he afterwards returned to France, and on a subsequent visit to England his son Clement was born; after his birth the father and son withdrew to their possessions, and settled in Alsace. It had been assumed, too hastily, that, because the treaty provided an indemnity for the loss occasioned to British subjects by the confiscation of their property, this gentleman was therefore entitled to that compensation under the treaty of 1786; but on looking to the treaty it would be seen that it did not refer simply to the property of British subjects confiscated in France, but to property of British subjects that was confiscated in violation of the treaty of 1786. Now, it was perfectly clear that the property in question was not confiscated on account of its belonging to a British subject, but because the Baron had controverted the laws of France. If the Baron de Bode, owing allegiance to the French Government, did anything contravening the law of the State, his property became subject to the consequences which all property is subject to under any Government. In the year 1793, the then Government of France passed a decree prohibiting emigration, because it was found that the nobles of France were rapidly emigrating to form an alliance with Austria—a Power which was then preparing to invade France—and forming an army against the existing Government. It was declared that any persons emigrating from France without leave should be held to be traitors to the State, and their property should be confiscated; and the Baron de Bode's property was confiscated, not in violation of the treaty of 1786, but as a French subject who had violated that law of France. The French law claimed the children of subjects born abroad as French subjects; the son was by the law of France a French subject—he owed allegiance to the French Government, and holding a fief within the dominions of France, was liable to all the incidents that attached to the possession of that property. With respect to the transfer that had taken place between the father and son, it was colourable, and a fraud upon the then existing Government of France, and so it had been held by Lord Stowell. In the year 1791, Charles de Bode saw the storm was gathering, and being desirous of protecting his family 404 estates against the risk of confiscation, he made them over to his son, in order that the son might allege his minority and youthful age in answer to any waver of might right he be compelled to make, and the cession was accordingly made. But, even if it were valid and not a colourable transaction, and although he was an English subject, he took the property ceded to him subject to all the incidents of tenure that attached to property according to the laws which the existing Government of France might pass, and he could not get rid of that objection unless he could bring himself within this treaty of 1786. The Baron de Bode brought his case before the Commissioners, by whom it was fully investigated, but they were not satisfied with regard to the two most important points of which proof was requisite—first, that there had been a bonâ. fide cession of the property from the first Baron de Bode to the claimant; and secondly, that the property had been confiscated as the property of a British subject. Exception bad been taken to the proceedings of the Commissioners on the ground that they had acted arbitrarily, hastily, and indiscreetly, but he thought, as the Commissioners were appointed by the English and French Governments, it must be assumed that their proceedings were regular and proper. If their proceedings had not been regular, the proper course would hare been to appeal to the Privy Council on that ground; but this course was not taken, and the Baron de Bode appealed to the Privy Council upon the merits of the case. The decision of the Privy Council was adverse to the Baron de Bode; and the Government in such a case had no alternative, but were bound to proceed in conformity with the Act of Parliament which prescribed the mode in which claims of this nature should be determined. The Baron de Bode, however, was not satisfied, and at the suggestion of a very able and learned gentleman, he presented a petition of right to the Crown. The Queen endorsed that petition in the usual form, declaring that "right should be clone." The question was further inquired into, certain facts were found, and the case then came; before the Court of Queen's Bench, where it was elaborately argued by the most able counsel on both sides, and the result was, that the Court. decided against the claim of the Baron. The Baron de Bode appealed; from the judgment of the Court of Queen's Bench to the Exchequer Chamber, who said, "We will not enter into the question 405 which it is sought to raise; it is enough for us that the party was bound to make his claim within the terms prescribed by the Act of George III.; he was bound by the decision of the Commissioners, affirmed by the judgment of the Privy Council; and there is no power which, by the law of the land, can grant any redress, even if he were entitled to it." The Baron de Bode then appealed to the House of Lords, who affirmed the judgment of the Queen's Bench, holding that the Baron was not entitled to redress. The case was now brought before that House, with the view, he (the Attorney General) supposed, of inducing some special interference on the part of that branch of the Legislature, by the assignment of a sum of money for the payment of the claim. There seemed to be a mistaken idea, that a considerable portion of the amount appropriated to the payment of these claims remained in the hands of the Government. The fact was that the persons who first established their claims were paid, and there being a surplus, the Government felt themselves bound to let in other claimants, in the payment of whose demands the funds were nearly exhausted. The Baron de Bode said, "You had no right to pay these subsequent claimants; for they did not prefer their claims within the proper time." But the answer to this complaint was, "Neither did you; and if you set up the Statute against these claimants, surely we may plead the provisions of the Statute against you who have sought redress under it, and whose claims have been rejected by competent authority." The question now to be determined was, whether Parliament would consent to any special interference, with the view of satisfying the claim of the Baron de Bode, and he (the Attorney General) must say that it did not seem to him, for the reasons he had mentioned, that there was in this case any moral claim on the part of the Baron upon time British Government. If the property of the Baron de Bode had been confiscated as that of an Englishman, or if the Baron had failed in obtaining redress upon technical grounds, and could show that upon moral grounds he was entitled to consideration at the hands of the Government and of Parliament, it would be a totally different case. But he (time Attorney General) thought that no one who considered the Act of Parliament candidly and impartially could fail to come to time conclusion that the confiscation of the property of the 406 Baron do Bode did not take place on the ground that he was an Englishman, but on the ground that he had violated the laws of France. They had nothing to do with a question which was not within their jurisdiction; they had nothing to do with the question between the Baron de Bode and the French Government—whether he was right in joining the armies that invaded the French soil, or whether the existing Government of France was justified in defending itself not against foreign enemies only, but against their internal foes. The French Government had passed laws against those Frenchmen who joined the foreign invader; under these laws the Baron's property had been confiscated, and we had nothing to do with the question whether the French Government were right or wrong in the course they took. He (the Attorney General) could not see how the accident of the Baron's having been born in England could give him any moral claim to the consideration of the Government or the Parliament of this country. Parliament might sympathise with the Baron de Bode, but they could not deal with a question which was not within the scope of their jurisdiction. He (the Attorney General) trusted that he had established a clear distinction between such a case as this and the cases intended to be provided for by the Treaty of Paris of 1815; and he must, therefore, oppose the Motion of his hon. and learned Friend.
§ MR. BOWYER
said, the hon. and learned Attorney General had stated that the Commissioners before whom the claim of the Baron de Bode was heard, stated, in the first place, that they were not satisfied with respect to the validity of the cession from Baron Charles to Baron Clement de Bode, but he believed that the facts stated by his hon. and learned Friend the Member for Greenwich (Mr. M. Chambers) showed clearly that it had been executed with all the requisite legal formalities. Nor had any reason been given which could lead any one to suppose that it was tainted with any illegality or fraud, which did not appear on the face of the deed. Besides, the validity of the cession had been found by two juries. But even supposing that the cession was not valid, seeing that the father had merely a life estate, and that the son had a vested remainder in fee, the confiscation would not the less have deprived him of an estate which he actually had. The hon. and learned Attorney General had also object- 407 ed that the confiscation was not of the kind contemplated by the treaty; but the highest tribunal for the decision of such cases—the Privy Council—had determined over and over again that confiscations of a similar kind did come within its operation. It was said that the property had not been "unduly" confiscated; but how could there be any confiscation which was not "undue?" The Privy Council had, however, held that mere confiscation was sufficient—that whatever the cause of confiscation might be, the fact of confiscation was sufficient, the object of the fund being to compensate all British subjects for all confiscations of property suffered by British subjects at the hands of the French Government. He contended that the treaty applied to all cases where the property of a British subject was confiscated, and was not limited to the case of his property being confiscated because it was that of a British subject. With respect to the hearing before the Privy Council, that could not be considered as of any authority against the claimant, because the constitution of that tribunal precluded it from entertaining any facts which had not been before the court below, and the Baron de Bode was therefore prevented from bringing forward many facts which were material to his case. The proceeding on the petition of right was decided on a purely technical point; and he could nut, therefore, admit that the decision of the Court of Queen's Bench would at all justify that House in refusing the Baron do Bode that redress to which he was undoubtedly entitled. It was impossible for any lawyer to deny that the Baron de Bode was an English subject; and that being the case, he was as much entitled to any indemnity afforded by the treaty as if his ancestors had lived in England since the days of William the Conqueror. It was said that the Baron de Bode had served against France, and that was the reason that his property was confiscated. There was, however, no evidence to show that this was the fact. His property was clearly confiscated on account of his having emigrated; and he was informed by Serjeant Manning that there were no fewer than eleven cases in which the Privy Council had decided that cases of confiscation on account of emigration came within the operation of the treaty. He hoped, therefore, that, guided by a sense of justice, the House would assent to the Motion.
§ MR. WILKINSON
thought that a clearer case was never brought before the House. It was impossible not to regard the cession from the Baron Charles to the Baron Clement de Bode as a colourable transaction; and it was manifest that the property was not confiscated because it was that of a British. subject, but specifically because he was a French subject who had violated French laws; and therefore the claimant was not one of the persons entitled to indemnity under the Treaty of Paris. He should, therefore, vote against the Motion.
§ SIR FREDERIC THESIGER
thought that those who were opposed to the claim of the Baron de Bode had great reason to complain of the motives which had been imputed to them on the present occasion. The hon. Member for West Surrey (Mr. Drummond) said that he appealed from law and the lawyers, and from Chancellors of the Exchequer to men of honour and of common honesty. Now, he must tell his hon. Friend that he was very much in the habit of scattering aspersions at random in his speeches, and that he (Sir F. Thesiger) could not allow him, on every occasion when he addressed the House, to engross all the honour and honesty to himself. He was as much alive to a sense of honour and of justice as was that hon. Member; and if he believed that the Baron de Bode had any ground for the claim which he made, he most unquestionably would not lift his voice against him on that occasion. Having that sense of honour, that sense of justice and humanity, and having, moreover, with the most earnest consideration, weighed every feature in the case of the Baron de Bode, he would repeat on the present occasion what he had before emphatically declared, that, in his full belief and conviction, the Baron de Bode had no title to any demand whatever on the British Government. The first point which arose in the consideration of this question was, not whether the Baron de Bode was a British subject, but whether he was a British subject within the terms of the Treaty of Paris. That he was a British subject in one sense, no one denied. He was accidentally born on the English soil, and that circumstance, quite irrespective of his mother being an Englishwoman (which was wholly immaterial), would, had he remained in this country, have entitled him to all the privileges of a British subject. But he was taken by his parents back to the country from 409 which his family sprung. At that time his father, the Baron Charles de Bode, had no property in Alsace, but in 1788 he purchased a fief held of the Archbishop of Cologne, and thus undoubtedly became lord of a fief in that province. Then the Baron Clement de Bode resided with his parents, being to all intents and purposes a subject of France, and having territorial duties and obligations towards the country to which he belonged. It appeared that by the Treaty of Westphalia the rights of the feudal superiors of Alsace were preserved. It is further contended that the Constituent Assembly had no right to abolish these feudal privileges. Now, even if that were so, it might be a matter for complaint with the contracting Powers; but it was perfectly clear that no treaty could prevent a Government of a country from enacting laws to bind its own subjects. But take it either way. If the land were feudal, then the Baron de Bode could not transfer his lordship to a minor—at all events, without the consent of his feudal superior; and there was no evidence that the Archbishop of Cologne had given his consent to the cession. If the land were allodial, then, he asked, where was the proof of the validity of the cession? There was no documentary proof of it in existence. But it was said the revolutionary army had entered the house of Sultz, and had destroyed or dispersed all the muniments. It was, however, a remarkable thing that the original investiture of the Baron Charles de Bode in the fief and the original account of the profits had been preserved—that the proof of the cession had alone disappeared. There did not appear even to have been any one who acted for the minor as his guardian in the matter of the cession, and the profits of the land continued to be received by the father as the guardian of his son. Was it possible, then, to come to any other conclusion than that the cession was a colourable one, morally justifiable perhaps under the circumstances, but done to evade the law? In 1793, the Baron and his son took refuge in the Austrian lines—he joined the Austrian army, which was pretty conclusive proof that he appeared in hostile array against his country. Under these circumstances, the Government of France confiscated the lordship of Sultz, treating it as the property of Baron Charles de Bode, and holding the cession as invalid. The question was, did they confiscate it in any sense as British property? 410 If they did not, then it was clear that under the treaty Baron Clement de Bode could have no claim. He hardly thought any one would be bold enough to say that the cession to a minor had been made, because that minor happened to be a British subject, and that he might therefore be entitled to the protection of the British Government. But whether or no, it was clear that the convention of 1814 and 1815 was founded upon the Treaty of Versailles, agreed to in 1786. But could any one suppose that that treaty was intended to include persons in the situation of the Baron de Bode? It was most evident that it was only intended to cover the property of persons who might be temporarily residing in France for business or for plea, sure, not of persons who were lords of territory in the dominion of Prance, and which territory they could never claim to hold in their character of British subjects. It was evident to demonstration that this property had always been regarded as 1French property, that it was not confiscated as British property, and was never considered as property held by a British subject. But now, what was the history of this case? The claim depended entirely upon the Act of Parliament. If the claimant did not comply with the terms of the Act, he had no right to make a claim. Now, look at the consideration which had throughout been shown to the Baron de Bode. He was clearly out of time in making his application. If it had been intended to throw out this case on grounds of trick or chicanery, as had been alleged, he would have been told at once that he was too late in preferring his claim, and there would have been an end of the ease. But the Commissioners appointed by the Act agreed to waive that objection, and to enter into an examination of the case. But, on examination, they were not satisfied with the proofs of the cession; and without the cession, it was clear that the property had not been confiscated as that of a British subject. They therefore rejected the claim. An appeal was taken to the Privy Council, where that eminent lawyer, Lord Stowell, confirmed the decision of the Commissioners. This decision ought to have been held as final and conclusive. But the Baron do Bode was not so satisfied, He applied to the Court of Queen's Bench for a mandamus against the Lords of the Treasury, to compel them to pay the money. Of course, it was ridiculous to suppose that any Judge would 411 allow a mandamus to issue under such circumstances, especially when the claim had been decided before the proper tribunal, and the application was rejected. Having failed there, he made another attempt by a petition of right. He acted under the advice of a learned friend of his, who was distinatished in the House and elsewhere—there by ids peculiarly bright appearance, and elsewhere by the great and profound learning he always displayed [Mr. Serjeant Manning, the Queen's Ancient Serjeant]. The petition of right was an almost obsolete proceeding, and he did not wonder. therefore, that his hon. and learned Friend opposite had fallen into some mistakes connected with the proceedings. There was a preliminary inquisition before a jury as to the facts, but that inquisition was ex parte. The law officers for the Crown could not appear, and it was not to be wondered at, therefore, that the jury found for the claimant. In traversing this finding there was, as had been said, a trial at bar, and here he (Sir F. Thesiger) first made his appearance in the case. His hon. and learned Friend opposite (Mr. M. Chambers) had talked much of the solemnity of the proceedings; but he must say he never saw a jury more disposed to find all the pleas for the claimant, and in proof of that he might state that, though the great question was whether the cession was valid. and though there was no question of damage before them, yet the jury found every plea for the claimant, and further found that the damages amounted to 300.000l. But on the question of law, the Court of Queen's Bench decided that the confiscation was not an undue confiscation —a decision which was afterwards confirmed in the Court of Error, and finally in the House of Lords. Yet in the face of these decisions, his hon. and learned Friend the Member for Greenwich (Mr. M. Chambers) insisted now that the House ought to come to the conclusion, "that the national good faith required that the just claim of Baron de Bode, established after protracted investigation, should be satisfied." Now he must certainly join issue with his hon. and learned Friend upon the terms he had himself issued. It was because he felt the importance of the subject, anti the desirability that the national good faith should be preserved, that he had considered it to be his duty to call the attention of the House to what was, in his opinion, the real state of the case. The objection to the Resolution was, that the 412 Baron de Bode was not a British subject within the meaning of the treaty, and, in the case of a claim made by a Mr. Drummond, of a similar description, the decision of the Privy Council had been to that effect. The hon. and learned Member for Dundalk (Mr. Bowyer) had said, that there had been decision after decision, on the part of the Privy Council, that, where the property of a British subject had been confiscated, the reason of that confiscation was quite immaterial as regarded the justice of his claim for compensation; but would he say that there had ever been a decision of the Privy Council, under similar circumstances to those of the Baron de Bode, that the claimant was a British subject? He would defy his hon. and learned Friend, or any lawyer either in that House or out of it, to show any case in which a question arose under circumstances similar to those which distinguished the case of the Baron de Bode, and in which it had been decided that the claimant was included in the terms of the convention. The Baron de Bode was, he might say, only accidentally a British subject—he never intended to own any allegiance to the British Government; but, on the contrary, he had made up his mind to reside on the property of his father when it devolved upon him, and he would most probably have remained there had it not been for the advance of the revolutionary army. Could any one say that such a person was properly included in the terms of the convention? Was his hon. and learned Friend aware that a similar case had already been decided in the Privy Council? He referred to the case of Mr. Drummond, who was a claimant under the very same treaty with the Baron de Bode, and in whose case the Privy Council decided, that though Mr. Drummond was a British subject, yet he was also a subject of France, and that, he and his family having been resident there for a century, it teas clear he could not be held to be a British subject within the terms of the treaty. Where, then, was the honour, where teas the justice of the case? and Why should those who took a view adverse to the claim of the Baron de Bode be denounced as persons who had abandoned all sense of justice and the principles of common honesty? He, for one, was satisfied that this claim was without foundation—that it failed in its very root and origin. It was admitted, indeed, that he had no legal claim; but an appeal was made on moral considerations. He trusted the House 413 would carefully weigh all the facts he had laid before them, when he was satisfied they would see that there was no foundation whatever for the claim, and that they would negative the Resolution.
§ MR. T. CHAMBERS
said, that the hon. and learned Attorney General had stated that, in order to decide any claim under the convention, it was necessary, as it referred to the treaty of 1786, to refer to that treaty; but the 5th Article, under which the Baron de Bode proposed his claim, had reference to real property, and had no reference to the treaty of 1786. With regard to the statement that Baron do Bode was not a British subject within the meaning of the treaty, he could only say that in the treaty there was no definition of what a British subject was. The highest right of a person to call himself a British subject was that of being a natural-born subject. This had been decided over and over again, and he had only to refer to the Countess of Conway's case; but it was never disputed that the Baron de Bode was a British subject. It did not alter that right to say that he was accidentally a British subject, for in a certain sense they were all accidentally British subjects; and he had been much surprised at hearing the observation, and more particularly at hearing such a view expressed by the hon. and learned Attorney General, for the House must remember how ably that hon. and learned Gentleman had urged the claims of Don Pacifico, although that person was not only not a natural-born British subject, but had only been naturalised on the rock of Gibraltar. And, with regard to the argument of his hon. and learned Friend (Sir F. Thesiger), much of it was precluded by the fact that all the circumstances upon which the Baron rested his claim had been held to be proved by competent tribunals, and therefore it was not competent now to import into the case facts contradictory, or in addition to those already proved. It had been contended that the property of the Baron de Bode had not been confiscated as the property of a British subject; but the Privy Council had decided that that was a point of no importance. The Baron de Bode had proved all the facts of his case, and he hoped that the House would assent to the Resolution proposed by the hon. and learned Member for Greenwich.
§ MR. WALPOLE
said, he would state in as few words as possible the reasons which would induce him to vote for the Resolution. Any one who carefully exa- 414 mined the question and followed it through its intricacies must arrive at one of two conclusions—either that the claimant was an adventurer or pretender who had failed in the prosecution of his suit in the ordinary manner—in which case the claim ought to be rejected as an undue interference with the administration of justice; or that this was a most serious question affecting the honour and credit of the country, and that therefore it ought not to be disposed of by anything like technical objections, or even upon the ground that previous decisions had been given which precluded the House from entering again into the consideration of the subject. For the first time in the whole of these intricate proceedings the objection had been raised—and he believed it to be an untenable objection—that no British subject had a claim to compensation from the funds given by the French Government for the purpose, unless he brought himself within time terms of the convention which referred to the treaty of 1786. Now, that was not the case. Two classes of British subjects were to be indemnified under this convention. One class were to be indemnified in consequence of losses sustained by them in contravention of the commercial treaty of l786, and these indemnities were to be given in respect of claims for personal property; the other class consisted of those who were entitled to compensation independently of the treaty of 1786, upon the ground that their real property had been unduly confiscated or detained. This latter class of eases was contained in the convention of 1814; the former were added to the class of cases included under the convention of 1814 by a supplemental article to the treaty of 1815, and both were incorporated in the last-mentioned treaty. He begged the House to remember that the whole objection to this Resolution rested upon this distinction. The convention under which the Baron's claim was to be established was that of 1814. It was under the 4th Article of that treaty that the Baron's claim was to be established, if it were to be established at all. But this article was total's distinct from that upon which the hon. and learned Attorney General rested his case. The Attorney General had rested his case upon the assumption that the claim of time Baron was under the treaty of 1786. But that was not so. The claim of the Baron was under the convention of 1814, and the provisions of the convention of 1814 were incorporated into 415 the definitive treaty of 1815, and they had the same force and effect. Well, appended to the definitive treaty of 1815 were certain conventions; and Article I, of Convention No. 7, introduced that new class of cases under which British subjects were to be entitled to indemnity who had suffered loss in contravention of the general treaty of 1786. But that did not exclude the parties who claimed under the convention of 1814; for they were equally brought within its provisions. It would be found that Lord Denman had drawn this very distinction. His hon and learned Friend the Attorney General would therefore observe that the whole foundation of this part of his argument entirely failed. Under these circumstances, he (Mr. Walpole) would point out a way in which, in his judgment, the case might be reduced into a very simple and narrow Coin pass. All he would ask the House was this, to carry themselves back to the year 1816, and, not misled by the miscarriages that had taken place subsequently, consider the question whether Baron de Bode was or was not a British subject, entitled in the year 1816 to compensation on account of losses which he sustained during the revolutionary war. Under the treaty of 1814 the persons claiming compensation were bound to make out three things: first, that they were British subjects; secondly, that they Lad property in France; and thirdly, that that property had been unduly confiscated. Now, he should show the House that in the case of the Baron de Bode every one of these points had been completely established. That the Baron was a British subject, he would not say only in an "accidental" sense; but that he was a British subject for the purpose of giving him all the rights and privileges of that character, nobody could deny. Sir S. Romilly, whose opinion the hon. and learned Member for Greenwich (Mr. M. Chambers) had quoted, expressly said that the condition and the rights of the Baron de Bode were exactly the same as those of a natural-born subject, the son of an English father and mother. What, then, was the meaning of the statement that by the "accident" of his birth, the Baron became a British subject when he could if elected sit in that House, when he could become a Privy Councillor, and when, if he were taken with arms in his hands, fighting British troops, he might be executed as a traitor, and not treated as an enemy? The second point was, had he 416 property in France? A distinction had been set up between feudal and allodial property, and doubts had been raised, founded upon this distinction, as to the legality of the cession from the father to the son. The question of the cession had been submitted to a jury, and the jury found, upon the only evidence that could be taken in such a case, namely, that of foreign advocates who knew their own law, that the cession was lawful. The finding was, "We find from the evidence that a cession took place in 1791 from Baron Charles to Baron Clement, and that from the evidence of foreign advocates such cession was valid." He supposed, however, he should be told that the cession was not bonâ fide—that it was fraudulent, and, therefore, that it could not be acted upon in this country. Fraudulent against Whom? He understood by the word "fraudulent" a contrivance by means of which the property of one man was taken from him by another; but whose property was taken away in this case? The lather had ceded his property to the son; was that a fraud? Had there been any fraud against the French Government? The French Government was deprived of nothing. No one was defrauded by the cession, which was merely an arrangement between the father and the son, by winch the son's expectant interest had been converted into fee. Lord Stowell had said the transaction was not an improper one. He thought, therefore, that there was nothing in this objection. The third point was, whether the property had been unduly confiscated. It was unquestionably confiscated on the ground that the father had emigrated, and not upon the ground that he was a British subject. But this was no reason why he was not entitled to compensation; for, as Lord Lyndhurst had observed, almost all the cases in which compensation had been given were cases where the claim was made upon the ground that the property had been confiscated by reason of the emigration of the claimant, and not by reason of his being a British subject. Thus the three ingredients which constituted the whole of the case were established—first, that the claimant was a British subject; secondly, that the property, on account of which the claim was made, was property belonging to him; and thirdly, that the property had been unduly confiscated within the terms of the convention of 1814. He would ask, then, what were the objections to the claim? The first 417 was, that the claim had not been sent in within the proper period. Was it true that the claim was not sent in within the prescribed period? No. In the 24th page of the Report before the House they had an answer to that question from the Attorney General of that day, and of the Queen's Advocate, saying that the claim was sent in in proper time, and was the Crown now to turn round and say, against the opinion of its own law officers, that the claim was not made within the proper period? A second objection was, that the Baron was not entitled to compensation if the property had been confiscated upon any other ground than that he was a British subject. Sir W. Grant and Lord Stowell, however, repeatedly held such an objection to be untenable. Another objection was, that there had been an appeal to the Privy Council. But the Privy Council did not confirm the decision of the Commissioners. The fourth objection was, that the Act of Parliament prescribed that no new evidence should be heard upon the appeal from the decision of the Commissioners, and that the new evidence tendered, to prove that the cession was valid, could not be gone into. If the Privy Council had received that evidence, they could not have refused compensation. The Baron then tried to obtain his rights by mandamus; but how was he met? By the statement that the property was in the hands of the Treasury, and that a mandamus could not be supported against the Crown. The claimant was prevented from insisting on his claim by means of the mandamus, because the property had been taken out of the hands of the Commissioners. A petition of right was at last presented—the whole of the facts were proved at a trial which subsequently took place at bar, the parties being heard for four days, and every portion of the case minutely examined; but right could not be done, because too great a time—more than six years—had elapsed. The three points to be made out were, that the claimant was a British subject, that he had property in France, and that that property had been unduly confiscated. He denied that it was requisite to establish anything more, and he submitted that he had completely proved all these points in the present case, as well as that he had disposed of the only two arguments by which the Attorney General had attempted to meet the claim. Upon what grounds, then, was it to be resisted? Was it resisted because of the 418 amount? He could not help suspecting that if the amount of the claim had been 30,000l. instead of 300,000l., that House would never have heard of it. But that must not preclude the House from doing what they believed to be just. Justice was their first duty. That House was the last tribunal to which any subject could appeal. They must remember that this was not an ordinary contest between party and party; it was a claim made by a single individual against those who held property as trustees for We public. Let not those trustees answer this claim by saying that it had not been made soon enough, or that the cession of the property had not been proved, or that the claimant was not a British subject within the meaning of the convention. He entreated the House to look at the question as a matter of honour and of justice. Let them consider whether this gentleman had sustained a wrong, which, with the information they now possessed, they would have been induced in the year 1816 to redress. Let them not refuse to do that in the year 1854 which they would have done from a sense of justice in 1816. He had taken this case up, not for the purpose of supporting the claim of a friend, for he hardly knew the Baron de Bode, but he had simply felt it his duty to investigate the case when it was put before him at the request of one of the most extraordinary men that ever lived—whose mind was capable of comprehending and analysing the greatest, as well as of disentangling the most complicated subject. It was that noble mid learned Lord's request that he should not say one word in Baron de Bode's favour, unless, after a deliberate consideration of the whole circumstances of his ease, he should arrive at the conviction that the claim was just. In compliance with Lord Lyndhurst's request, he did investigate the whole matter, and, having done so, he arrived at the conviction that the claim was just, and he therefore would support it to the utmost of his power. He thought the honour of the country, the honour of Parliament, and the honour of the Crown, were concerned in this matter. The honour of the country was concerned, because they had the property in their hands; the honour of Parliament was peculiarly concerned, because it had passed an Act which deprived the claimant of the means of proof by which his claim could now be substantiated; and he also considered that the honour of the Crown was 419 concerned, since the Crown was the guardian and trustee of this property, for those to whom it should be found to belong; and they should not withhold it for any reasons which he confidently submitted would not be supported if they were brought be fore a court of justice, and which ought not, therefore, to be supported by that House, as a valid, sufficient, or satisfactory answer to that which he thought was a just demand.
§ THE CHANCELLOR OF THE EXCHEQUER
said, he warmly sympathised in the complimentary reference made by his right hon. Friend to the distinguished man who, arrived at years beyond the ordinary limit of human life, had applied to the consideration of this case the powers of an intelligence which appeared so keen and bright that no extremity of old age could dim its lustre. His right hon. Friend said, let justice be done. He thought that under ordinary circumstances it was dangerous to urge even these sacred words with respect to questions which might fairly be considered as having been settled long ago; but he was ready to admit that without at all intending to consider this case as a precedent, there were peculiarities in the circumstances out of which it sprang, and in the manner in which it had been treated, which would certainly restrain him from urging any Statute of limitations as a reason why it should not be entertained. This case of intricacy and complexity, such as had rarely been presented even in a court of law, and requiring the utmost efforts of all the skill and experience of the most accomplished lawyers for its solution, was now laid before the representatives of the people, whose time and thoughts were observed by other matters of the weightiest consequence, and yet who were to be invited, not to declare that there were appearances in this case, and presumptions arising on the face of it, which would justify further steps of inquiry, but to come that very night to a peremptory decision that in their opinion these claims were valid and incontrovertible—claims which had been examined by the Commissioners appointed under the convention, which had been pronounced untenable by the Court of Exchequer and the House of Lords—upon claims with respect to which it must at all events be admitted that the opinions of the most eminent men were divided. The Members of that House were asked at once to come to a decision, after listening to the speeches of 420 that evening, which had not been heard by more than a very limited proportion even of the small auditory which he had the honour to address. The right hon. Gentleman rarely indulged in the practice of attributing improper motives to others; but on this occasion he seemed to have done so, when he expressed his belief that the claim was opposed on account of the amount. He could assure his right hon. Friend that if the amount of those claims, instead of reaching the large sum of 400,000l., did not exceed 5s., he should resist them on principle as firmly and strenuously as he did now. His right hon. Friend might believe that Government had no other motive besides the wish of acting fairly by the public, because when the claims were first preferred there was a sum at their command sufficient to satisfy them, had this appeared to be the course pointed out by justice, and had there not existed insuperable objections. His right hon. Friend said the treaty of 1815 established a clear distinction between two classes of persons—the one those whose claims had been admitted under the treaty of 1814 as dating back from the treaty of 1786, the other a new class which came in under the treaty of 1815. He was bound to say that his right hon. Friend appeared to be supported by the opinion of Lord Denman in the assertion that there were two classes of claimants contemplated by the treaty of 1816; but he must confess himself entirely unable to discover any such distinction between the one class and the other. The article of the treaty of 1815 declared that all subjects of His Britannic Majesty having claims on the French Government, who in contravention of the second article of the treaty of commerce of 1786, and under the operation of the decrees of 1793, had suffered by the confiscation and sequestration of their property, should, agreeably to the 4th Article of the treaty of Paris of 1814, be indemnified for the losses they had sustained, either in their own persons or in that of their heirs and assigns. He could not see here any line of demarcation whatever between two different classes. It was perfectly clear that the treaty of 1814 was incorporated with the treaty of 1815; and the article to which his right hon. Friend referred did not bear a trace of the distinctions he had endeavoured to draw. His right hon. Friend justly observed that the claim, being founded on the treaty of 1814, was independent of 421 any reference to the treaty of 1786. Indeed, it was perfectly clear that the claim could not be rested on the commercial treaty of 1786, inasmuch as the 2nd Article, which alone applied to the case, provided that such claimants only should have redress who behaved peaceably, and who committed no offence against the laws and ordinances of France. But it was amongst the facts conceded in the present case, that the Baron de Bode and his father did commit an offence against the laws and ordinances in force there, because emigration was constituted an offence by the decrees passed by the de facto Government, and emigrants incurred the penalty of forfeiture of property. It was admitted, therefore, that the case could not be rested on the treaty of 1786. Were they there to deny the validity of the acts of the de facto Government of France? He apprehended that was no business of theirs. In the present case it was not pretended that the House of Commons was in a condition to question the acts of the Government of France. He put it to the House that this confiscation, as it was called—though he thon, it forfeiture would be a better word—that this forfeiture of property, though it might have been a violent and unjust act, was an act that took place strictly according to law, and being an act strictly according to law, it was not an illegal confiscation. In the case of Drummond, whose estates Led been confiscated like those of the family of the Baron de Bode, the Judicial Committee of the Privy Council, on an appeal, decided that the claimant, although technically a British subject in 1792 and 1789, was also at the same time in form and in substance a French subject, domiciled in France, with all the marks and attributes of a French subject, and that all the acts which had been done by the French Government were done in the exercise of its municipal authority over its own subjects. Those words, "in the exercise of its municipal authority over its own subjects," contained the whole pith of the ease. He challenged any gentleman to get rid of the conclusion that those were acts which were done by the French Government in the exercise of its own municipal authority over its own subjects. They had been told, forsooth, of the finding of a jury—and that, too, a purely ex parte finding of a jury—distinctly set up against the authority, the learning, and the judgment of Lord Stowell. The hon. and learned Gentleman the Member for Hertford (Mr. T. Chambers) said 422 nobody doubted there was an undue confiscation. But for him, he (the Chancellor of the Exchequer) should have been better justified in stating that nobody asserted there was an undue confiscation. The whole of the judgment of Lord Denman, which had been confirmed by the Exchequer Chamber and the House of Lords, proceeded on the doctrine that there had been no undue confiscation, but that the confiscation was an act which the French Government was perfectly competent to do. The parties did not even venture to make the allegation that the property was unduly confiscated—they left it to the Court to drew that inference, and Lord Denman said that the forfeiture must be taken to have been decided on in consequence of the Baron's violation of the law of France. What pretext was there then to call upon the House to re-try this case, when it had been decided, even after an ex parte statement, that there had been no undue confiscation? Unless there was an undue confiscation of the property, the whole of the rest of the argument fell to the ground. This was a question of law, and the law having spoken, the question was decided. He thought it was an act of peculiar favour on the part of the House of Commons to entertain this question at all. He had shown the House that the matter of undue confiscation was one which had come solemnly under the highest tribunals of the country, and that they had decided that it was not undue. [Mr. BOWYER: No, no!] When the hon. and learned Gentleman said "No, no," he was speaking in the teeth of every line of the judgment of Lord Denman. He (the Chancellor of the Exchequer) would not contest the nationality of the Baron de Bode. It was entirely unnecessary fur his purpose. He admitted, for the purpose of argument, that the Baron de Bode was an Englishman; but then, if the Baron de Bode was an Englishman, he was something else, because, it might seem a contradiction in terms, being an Englishman in law, the Baron de Bode was a Frenchman in law. Was there any doubt about that? It was an undeniable maxim in French law that the child of a French subject, born abroad, continued a French subject. Under the operation of the French law, the Baron de Bode lost his property, and there was but one way in which he, being an English subject, and being also a French subject, could be exempted from the operation of the French law, and that was, if he had a treaty between France and England to 423 fall back upon. His (the Chancellor of the Exchequer's) proposition was this, that the person who was both an English and a French subject could not, by virtue of the municipal law of the one country, escape from the municipal law of the other. His hon. Friend the Member for Surrey (Mr. Drummond) had made charges of fraud, deceit, and swindling, and imputations of the basest motives, in this matter, as if he had been scattering flowers upon the heads of hon. Members. He (the Chancellor of the Exchequer) did not regret that habit except for the sake of his hon. Friend himself; and his lion. Friend would do much better if he would consent to prune his always entertaining speeches of the, peculiar feature to which he had just alluded. With respect to the case of the Baron de Bode, he (the Chancellor of the Exchequer) had no other wish than that it should be decided strictly according to its merits. They had gone back to the very fountain Lead of the whole proceeding, and he thought it had been shown that the Baron de Bode was deficient in the first elements of a title to their pecuniary consideration, because there was not the shadow of a ground for stating, unless they were prepared to overset the highest judicial authorities of their own country, that the property of the Baron de Bode was subject to that undue confiscation on which alone he could found a claim against the Treasury of this country.
§ MR. MUNTZ
said, the question was, who had the money? It appeared to him that the British Government had it, and that they ought to give it up. He could not understand why each successive Government stepped out of its way to support the injustice of their predecessors. Be lieving that the claim of the Baron de Bode was founded in justice, he should support the Motion.
§ MR. J. WILSON
said, that the whole of the fund which had been received from the French Government by the, English Government had been exhausted in defraying the legitimate purposes for which it had been received, and the question the House had to decide was, whether, under all the circumstances of the case, the House would impose on the country taxation to the amount of 500,000l. sterling, for the purpose of discharging the claim under consideration?
§ MR. SPOONER
said, his opinion on this subject Lad been completely changed by the debate of that evening. He had pre- 424 viously thought the ease of the Baron de Bode was one of much injustice; but since listening to the debate, he had come to the-conclusion that the Baron de Bode did not come under that class of British subjects entitled to compensation under the treaties to which reference had been made.
§ MR. DUNLOP
said, he had also come down to the House under the impression that the Baron de Bode was a much injured man; but he was now most thoroughly convinced that the case was alto gether without any foundation at all.
§ MR. MALINS
would not detain the House long. He had no personal object in connection with the case, and took no interest in the Baron de Bode. He had, however, taken the utmost pains to arrive at a just conclusion, and could not arrive at that which his hon. Friend the Member for Warwickshire (Mr. Spooner) had formed. The present and the late Attorney General had declared to the Baron de Bode that he had no foundation for the claim; their arguments were such as might be used for a plea in bar. He could not understand the refinements attempted to be put upon the fact whether the Baron de Bode was not in part a French subject; but the Baron de Bode was, in his opinion, as in that of Sir S. Romilly, a British subject. That was admitted in 1822, as well as in 1817; and he could not understand how it could be denied now.
§ MR. MONTAGU CHAMBERS ,
in replying, denied that Clement de Bode had ever been a French subject, and contended that the property had been unduly confiscated, as it had been decided many times by the Privy Council, that, when it was once established that a claimant was a British subject, and that his property had been confiscated on account of emigration, such a confiscation was an undue one. Sir Samuel Romilly's opinion was, that the Baron was a British subject, and there was not a lawyer of that day who ventured to contend that there was in him anything of the mixed character of a foreign and British subject which would prevent him from putting in his claim. He did put in his claim, and it was acknowledged by the Foreign Commissioners, and no later than 1847, by M. Guizot, in a letter to the Baron do Bode, informing him of the result of certain researches which had been made in the French archives relative to the mixed Commission, stated that one thing appeared to be plain from those researches—that Baron Clement was included in the number 425 of persons qualified as British subjects to present themselves before the Commission as creditors of the French Government, according to a statement drawn up and signed by the English Commissioners. This at once demolished all the arguments of those who maintained that he was a French subject. As to the fund being duly appropriated or entirely expended, the misapplications, as appeared from authentic returns, were startling and notorious: for instance, 23,000l. to Monsicur Ladebat; upwards of 200,000l. to the Bordeaux claimants; 68,000l. for claims not sanctioned by the Convention; and gratuities to the Commissioners themselves of an additional year's salary after the termination of their duties. in what position, then, would the English nation stand for the future among foreigners when it appeared that the mixed Commission had dealt with the claim of the Baron de Bode, that afterwards, upon a mere. mistake in the Statute, he was barred from producing the evidence which was required, and that then the Privy Council gave judgment against him in consequence of the absence of that evidence? With regard to the other judgments which had been given, those in the Queen's Bench went on the ground that, to sustain a petition of right, it was necessary to show that the money had come into the private hands of the Crown, whereas it was actually paid into the Bank of England; and that in the Exchequer, which, however, affirmed that the Baron was a British subject, was based on a strict interpretation of the letter of the Statute 59 Geo. III.
§ Question put.
§ The House divided:—Ayes 67; Noes 82: Majority 15.
§ The House adjourned at a quarter before One o'clock.