HC Deb 17 May 1860 vol 158 cc1367-87

said, he rose pursuant to notice to call the attention of the House to the Statement by the Solicitor General with reference to an advertisement in The Times newspaper for raising money to assist the insurgents in Sicily, and to call attention to a decision of the Court of Common Pleas as to the illegality of such a proceeding. He was induced to bring the question before the House in consequence of the reply given by the hon. and learned Solicitor General on the previous Friday night to a question put to him by an hon. Gentleman who was a supporter of the Government (Mr. Grant Duff). His (Mr. Hennessy's) opinion as to the state of the law might be of little weight, but the opinion of the hon. and learned Gentleman had attracted great attention, not only from his official position in that House, but also because he held a distinguished position as a lawyer. It would, perhaps, be convenient if he recalled the attention of the House to the circumstances under which the question was put. The attention of the hon. and learned Gentleman was called in this House to an advertisement which had appeared in The Times, relative to the collection of funds to promote the insurrection in Sicily. The hon. Member (Mr. Grant Duff) who introduced the subject frankly owned he wished success to the revolt, and hoped that, spreading into the main land, it would before long overwhelm the King and Government in titter, destruction. The hon. and learned Gentleman, in replying, said:— The question was, whether the subscribing of money by any of Her Majesty's subjects in this country or paying it into the hands of a foreigner living here with the purpose and object described, came within the rule of common law, or was an offence against any prohibitory statute. Now, it appeared to him that, as long as what was done was limited within the bounds of a mere subscription in this country, such as this advertisement prescribed, no law of this country would be violated. The Foreign Enlistment Act prohibited the enlistment of soldiers and equipping of vessels. It did not in any way touch subscriptions. Any man who thought proper might put his hand into his pocket take out his money and put it into the hands of another on the faith of its going to Genoa to be disposed of by General Garibaldi, without violating any law whatever. Now, the purpose and object for which the money was collected, were set forth clearly enough in the advertisement, which was published in English and Italian, the English version being as follows:— Subscription Fund in Aid of the Sicilians.—The committee appointed at the meeting of Italians, held at St. Martin's Hall on the 4th of May, announce that in conformity with the resolutions passed at that meeting, a subscription has been opened in aid of the Sicilians, and they earnestly invite all Italians resident within the United Kingdom, and all other persons who may be inclined to sympathize in the cause of Italy, to forward, as early as possible, their contributions to assist the Sicilians in their struggle for freedom. The subscriptions, when collected, will be transmitted to a central committee in Genoa, presided over by General Garibaldi. The hon. and learned Gentleman might also have ascertained the purpose and object of the fund to which subscriptions were invited from the resolutions passed at the meeting referred to in the advertisement, from the pages of the public press, or from the speech of the hon. Member who asked the question. It was perfectly evident that the object of the subscribers was simply to assist in promoting an insurrection against a Sovereign in amity with our own. General Garibaldi, to whom the subscriptions were to be paid, and who commanded the force which had landed in Sicily, had received a good deal of sympathy in this country. Sympathy had also been extended to two Italians who accompanied him. One of these was the notorious Ricciardi, a letter of whose had been published in The Times describing the proceedings of the expedition. In a proclamation addressed to the Italians, Ricciardi had used the following language:— Independence requires revolution and war. All considerations as to progress of knowledge, civilization, industry, riches, and public property must be put aside. He spoke of Christianity thus:— The fatal plant born in Judea—that error which has taken root among men—has only reached its high point of growth because it was invigorated with waves of blood. But a new era will soon begin for men, the glorious era of a redemption, very different from that of Christ. The despotic tendency of Italian liberalism he thus indicated:— We do not want a popular assembly, fluctuating, uncertain, and slow to deliberate; we want a hand of iron to rule a people hitherto accustomed to differences of opinion, and enervated by slavery. Such were the words of the compatriot of Garibaldi. [Cries of" Date!"] The proclamation of Ricciardi, from which he had quoted, was issued in 1848. [A laugh.] The other companion of Garibaldi was the equally well-known Zambianchi, of whom some account would be found in a work with which a right hon. Gentleman opposite (Mr. Gladstone) was well acquainted—Fariui's State Romano. in that work it was recorded that in 1849 Zambianchi had gathered together all the priests in San Carlisto, and there slaughtered them. He was well-known in Italy by the title of the "Priest Slaughterer," and was a prominent member of the society known as the "League of Blood." He wished also to direct their attention to the antecedents of Garibaldi himself. A correspondence took place last summer between two noble Lords as to General Garibaldi. In communicating with one of them on this subject he (Mr. Hennessy) called his attention to the character of the secret society of which Garibaldi, as a member, had taken the oaths, and his letter was published in some of the continental papers. It attracted the attention of a distinguished diplomatist employed by Her Majesty, who wrote to him to say he was very much struck by the rules of that society, as they completely confirmed the impression he had previously formed, and to ask permission to make use of his letter as an authority in "another place." Of course that permission was given at once. He would read to the House some of the rules of the society in question:— Members who will not obey the orders of the secret society, or who unveil the mysteries, shall be poniarded without remission." "Each secret tribunal is competent not only to judge guilty adepts, but to put to death all persons whom it shall devote to death." "If the victim succeed in escaping he shall be pursued incessantly in every place, and the guilty shall be struck, were he sheltered on the bosom of his mother, or in the tabernacle of Christ. Few persons were aware of the extent to which these secret societies prevailed in Italy, or the nature of the oaths which they imposed on members. The rules he had quoted would give the House some idea of their character. He would proceed however to call the attention of the House to the opinion given by the hon. and learned Gentleman on the subject of the subscriptions. His statement had attracted much attention on the Continent. In The Times of the 15th inst. appeared a letter from a correspondent at Turin, who wrote thus:— The late debate in the English Parliament respecting subscriptions opened in England for the avowed purpose of aiding Garibaldi's expedition, will go far, I have no doubt, towards reassuring the King's Ministers here, who thought themselves gravely compromised by the indulgence extended to some of the Sicilian sympathizers, who collected money for Garibaldi here. The position of Sardinia, however, differs in some degree from that of the British Empire, and the Italian proverb says 'the same offence brings one man to the throne, and another to the scaffold.' Almost every paper in France, in Italy, and generally throughout Europe had published the opinion on this question given by one of the chief law advisers of the Crown. He would like to ask the hon. and learned Gentlemen himself whether he had not received intimations from subjects of the Queen in this country calling attention to the fact that they had been solicited to subscribe in aid of the Italian insurgents, and requesting him to institute a prosecution against those who thus violated the law. When he ventured the other evening to question the soundness of the opinion given by the hon. and learned Gentleman, he was only able to cite from memory a certain common law case in which an important decision had been given. This was a question, however, which depended, not merely on the common law of England, but also on international law. And he maintained that both by the common law of England and by international law, as understood in every State in Europe, and in every century of civilization, such a proceeding as that which one of the law advisers of the Crown had declared to be legal, was distinctly condemned as a violation of the law. He would first address himself to the common law of this country. They were fortunately in possession of a decision on the subject by the Court of Common Pleas—a very thoughtful and deliberate decision, given by one of the most eminent Judges who evers at upon the bench. In the year 1824 a case came on for trial before Chief Justice Best, in which the question arose; whether a certain engagement to raise money was valid or not. The Chief Justice laid down the law that the engagement being to raise money to promote insurrection against a Government in amity with our own was null and void, and subsequently, on a Motion for a new trial in the full Court, and giving the unanimous judgment of the Court, he said:— It occurred to me at the trial that it was contrary to the law of nations, which in all cases of international law is adopted into the municipal code of every civilized country, for persons in England to enter into engagements to raise money to support the subjects of a Government in amity with our own in hostilities against their Government; and on further consideration I think that my opinion at the trial was right, and on that ground that we ought not to grant a new trial. The force of this decision would be understood by every hon. Member of the House. It at once declared that the act set forth and described in the advertisement in The Times was illegal according to the common law of England. He might, perhaps, be allowed to say a word upon the general question of international law and policy. He should quote the opinion of a learned Gentleman, once a Member of the House, whose authority would be admitted. Mr. Phillimore, in his Commentaries on International Law, said:— A State is prima facie responsible for whatever is done within its jurisdiction. A body politic is responsible for the acts of individuals which are acts of actual or meditated hostility towards a nation with which the Government of these subjects professes to maintain relations of friendship or neutrality. He had a higher authority, however, than Mr. Phillimore—that of a gentleman who, he trusted, would take part in this debate—the present learned Attorney General himself. On February 19, 1858, on the second reading of the Conspiracy Bill, the hon. and learned Gentleman laid down the general principle:— It is undoubtedly a principle of our law that whatever tends to interrupt the amity of the Sovereign with a foreign Power in alliance with our Sovereign is an offence, to use the language of some of the older statutes of our country, against the amity of the Crown."—[3 Hansard, cxlviii. p. 1824.] Another Member of Her Majesty's Government gave his opinion upon the subject in 1851. Dealing with a question closely resembling the present, the then Home Secretary, Sir George Grey, said— I shall not be contradicted by any legal authority in this House when I say that foreigners adopting any measure with the view of levying war against any foreign country with which this country is at amity are guilty of an offence at common law, and are punishable on conviction by fine and imprisonment. At the time of the Conspiracy Bill, as well as he remembered, a distinction was drawn between foreigners and subjects of the Queen. It was alleged by the noble Lord at the head of the Government that the subjects of the Queen could be punished for certain offences, but that foreigners residing here could not be punished for those offences. The question which they were now considering was, whether an act in which both subjects and foreigners residing here had taken part was illegal, and therefore the authorities which he had read were much stronger than on the occasion to which he had referred. There remained a still higher authority—he believed he might say the highest living authority in this country—Lord Lyndhurst. It was a remarkable fact that a circumstance very similar to this occurred in the year 1851, and Lord Lyndhurst, in calling attention to the advertisement of the Central National Italian Committee for obtaining funds to raise insurrection in Italy, said— Now, it is quite obvious, my Lords, that this is a breach of the implied engagement which those persons entered into when they came to this country to seek the protection of our laws, and I am sure your Lordships will join with me in reprehending such conduct in the strongest possible terms. My Lords, I am not so weak as to suppose for one moment that much money will be raised in this country by a body of this description. People are much more ready to throw up their caps and shout in favour of liberty, equality, and fraternity, than to lay down their money for such objects."—[3 Hansard, cxv. 623.] Fortunately, at that time Lord Lyndhurst's question was not addressed to a Member of Her Majesty's Government, whose sympathies with the Italian cause made him for the moment forget the common law of England, and Lord Grey, who replied to Lord Lyndhurst, used these remarkable words:— Her Majesty's Government disapprove of any such proceedings as strongly as the noble and learned Lord himself, and to the full extent of the authority invested in them by the constitution and the law they would discourage and discountenance all such proceedings. The effect of that debate in the House of Lords was that proceedings censed, the advertisement was withdrawn, and the Central Italian Committee to promote insurrection was not heard of again until within the last few months. He might content himself with making this statement; but he felt that the present question was really connected with some others which had lately engaged the attention of the House. He felt that it was above all connected with certain despatches which the noble Lord the Foreign Secretary had thought fit to address to the Court of Naples; that it was very intimately connected with the attitude of the Emperor of the French, and the territorial changes which were taking place or impending in Europe; and, with the utmost respect, he would ask the House, on whose opinion the public opinion of Europe had so often relied, carefully to consider before they endorsed the insurrectionary spirit which he was sorry to say pervaded a certain portion of the English public, and before they encouraged the filibustering expedition of Garibaldi. Some time ago it was made a reproach to our friends across the Atlantic that they encouraged filibustering expeditions, and the American Government was called upon by more than one of the European Governments to explain their conduct. They repudiated those expeditions; but now, for the first time, one of the oldest established Governments of Europe—an old monarchy—actually came forward to sanction, almost to enforce, a filibustering expedition. There was a time when the foreign policy of England was not associated with revolutionists. There was a time when it was directed to maintain legitimate order, to uphold dynasties, and to promote the cause of civilization in Europe, and not to promote, as it now seemed, not only the cause of revolution and anarchy, but, as he thought he had indicated, the cause of assassination and outrage. He begged to apologize to the House, and particularly to the Solicitor General, for having presumed to call his attention to a point of law, and he assured them that in doing so no one knew better than he did himself how very poor his opinion must be.


Probably before this discussion proceeds further, it may be thought desirable that I should now state to the House, what was the real purport of the answer which I gave to the question put to me on Friday night last. I thought, at the time, that it was desirable I should be very careful and precise, and I endeavoured to be so. I prescribed strict limits to myself, but I see by the Report, with which I find no fault, that, especially if my answer be read disconnected from the question, what I said may tend to mislead. With the permission of the House, therefore, I will, as on that occasion, refer to the important words of the question. The hon. Gentleman (Mr. Grant Duff) gave notice of his intention to ask me, whether my attention had been called to an advertisement, which appeared in the The Times of Wednesday, the 9th of May, announcing that a subscription had been opened in London in aid of the Sicilians; and whether persons, in this country, who contributed to the fund which it was proposed to raise, would render themselves liable to any legal proceedings. I intended to give a precise answer to that question. I understood—as I think every one would understand, and as I presume the hon. Gentleman who put the question intended by the words with winch it concluded—by "legal proceedings," proceedings in a criminal court, by way of indictment. I considered the question I was answering to be simply whether a poison who should read this advertisement, and in his own mind approve the result to which it points, and acting singly and individually, pay money into the hands of any one of the recipients named—aye or no, is he liable to be indicted at common law for a misdemeanour. My opinion was, and is, that he is not. I am not prepared to say that upon a matter like this, which is not of frequent occurrence, that is an opinion in which, without being limited and guarded, every lawyer in this House will concur; but I take upon myself the answer which I then gave, in the sense and with the intention I have explained. I will state, in a few words, the reasons for my view; but I must previously express a hope that the hon. Member (Mr. Hennessy) will excuse me if I decline to follow him into some of the topics to which he has thought fit to advert. It is not for me to defend Garibaldi, or any person who may be engaged with him, in any part of Italy, in any act of insurrection. All I have to deal with is the dry point of law, and the propriety of the answer which I gave the other night. I repeat that my real intention in giving that answer was to express my opinion that an individual who by himself, of his own free will, paid a subscription of this sort, would not, by the mere simple fact of his subscribing, render himself liable to an indictment at common law. The question is whether that would be an indictable act. I am not prepared to question the doctrine—though the point is a very different one from that which the hon. Gentleman has brought before the House—that persons engaged in a conspiracy to foment, or excite, insurrection in the States of a friendly Power, would be liable to prosecution. The hon. Gentleman has stated that noble Lords and persons of high authority have laid it down that such a conspiracy may be dealt with criminally as a misdemeanour, and the persons engaging in it visited with fine and imprisonment. So far from taking exception to that doctrine, I will quote a passage from a speech of Lord Lyndhurst on this point. The noble and learned Lord said, on the 4th of March, 1853:— If a number of British subjects were to combine and conspire together to excite revolt among the inhabitants of a friendly State—of a State united in alliance with us—and these persons, in pursuance of that conspiracy, were to issue manifestoes and proclamations for the purpose of carrying that object into effect; above all, if they were to subscribe money for the purpose of purchasing arms to give effect to that intended enterprise, I conceive, and I state with confidence, that such persons would be guilty of a misdemeanour, and liable to suffer punishment by the laws of this country, inasmuch as their conduct would tend to embroil the two countries together, to lead to remonstrances by the one with the other, and ultimately, it might be, to war."—[3 Hansard, cxxiv., 1047.] I find no fault with that proposition, but every lawyer is aware of the extreme difficulty of bringing the provisions of the criminal law to bear on such a case; indeed, we had not long ago a proof, in the case of Dr. Bernard, of the extreme difficulty of applying the common law—assuming it to be the law—against persons conspiring in this country to forward some act that was to take place in a foreign country. In justice to myself, I must repeat that I expressed an opinion, the other night, only on the particular case which was put to me. No person has asked me what would be the condition of persons forming themselves into a Committee, for the purpose of exciting or supporting an insurrection in a foreign friendly State. I gave no opinion as to what might be the position of persons causing the insertion of these advertisements in the newspapers, or of the pub- lishers of the newspapers themselves; much less did I take upon myself to express any opinion as to what might be the consequences, penal or otherwise, of a conspiracy such as was referred to in the debate in the Lords. With this limitation, I still hold, and I repeat the opinion which I expressed the other night. The Foreign Enlistment Act does not touch the case of subscriptions; but there is the strongest evidence, in that Act of the insufficiency of the common law of this country to deal with offences of this description. The preamble of the Act runs thus:— Whereas the enlistment or engagement of His Majesty's subjects to serve in war in foreign service without His Majesty's licence, and the fitting out and equipping and arming of vessels without His Majesty's licence for warlike operations on or against the dominions of any foreign Prince, State, &c., or against the ships, goods, or merchandise of any foreign Prince, &c., as aforesaid, may endanger the peace and welfare of the kingdom; and whereas the laws in force are not sufficiently effectual for preventing the same— It does not give a penal character to offences in violation of its enactments beyond the terms of the common law; it makes the offences, which arise from such a violation, misdemeanour, and misdemeanour only; and therefore there is in it the strongest evidence of the insufficiency, in a general way, of the common law doctrine of misdemeanour to reach these cases. My attention has been called by the hon. Gentleman to a case decided in the Court of Common Pleas, and from some general observations made in that case—more in the way of dicta than decisions on any particular point—he has inferred that the act of subscription would, according to the authority of the Court of Common Pleas, amount to an indictable offence. Upon that point I am entirely at issue with the hon. Gentleman. I do not deny that, in the ease of a foreign loan attempted to be raised hero, for the purpose of fomenting an insurrection in a foreign country in amity with us, the Court of Common Pleas, in an action on the contract, has held that the contract could not be enforced, being tainted with the character of illegality. But every lawyer knows that illegality is one thing, and criminality another. Every lawyer knows that contracts are perpetually brought before the Courts, either to have their performance enforced, or to recover damages for a breach of them, with regard to which the Courts decide that fulfilment cannot be compelled, nor damages recovered, and yet no one would say that the persons engaging in them were liable to an indictment. The law holds a variety of contracts to be void, such, for instance, as contracts for the price of obscene and immoral books or prints, contracts prejudicial to the public revenue, against the policy of the bankruptcy and insolvency laws, contracts affecting the course of public justice, and others; in all these cases there is an illegality in one sense, and such an illegality as to prevent the Courts of law enforcing the contract, but there is not in them what I will call criminality. If a person, who had received subscriptions for the purpose of an undertaking of this kind, were to turn round and say, "I shall not apply them to the purposes indicated. I shall give them, instead, to this, that, or the other Prince or potentate," and the subscribers were to bring their actions, the Courts might say that, though there was no criminality in the contract, it was so far tainted with illegality, so much against the policy and spirit of the law, that damages for a breach of it could not be enforced. When the matter is really understood, it will be found, I apprehend, that there is no great difference between the authorities cited by the hon. Gentleman and myself; and, with the limitation of the doctrine of conspiracy to which I have adverted, I adhere to the opinion which I gave the other night.


If, Sir, the answer given to the House the other night by the hon. and learned Gentleman, has, by means of the electric telegraph, created some confusion abroad, I think I can undertake to say that the speech which he has just made, if transmitted in the same way, will not be productive of much alarm, as I rather think it will not be understood. In the words of the old couplet,— He darkens by elucidation, And mystifies by explanation. I am utterly at a loss to know what the hon. and learned Gentleman really thinks upon this matter, which is one of great importance to the peace of Europe, and to the estimation in which this country is to be held abroad. When he sat down I was more in the dark even than when he got up to understand what are his views upon this grave question of international law. The question is this:—An advertisement appeared in the papers referring to a committee of individuals who had joined themselves together for the purpose—whether laudable or not this is not the place to dis- cuss—of collecting and conveying subscriptions to those persons who are now in insurrection against their Sovereign, the King of Naples in Sicily. That is a fact which it is beyond the hon. and learned Gentleman's powers of explanation to mystify. I understand that the learned Gentleman was asked, in reference to that advertisement, whether it was legal for a body of persons so to join themselves together in this country, and whether it was legal for persons to subscribe according to the requisition of that advertisement, for the purposes therein stated. I understand him to have stated that, in his opinion, it was. Forthwith his reply is flashed over Europe, and is quoted in the Sardinian Parliament. It has been taken up as an exposition of international law, that the more friendly you appear to be to a particular Sovereign, the more actively you may engage in compassing his destruction; and therefore, if to-morrow an advertisement were to appear from certain exiles in some journal, referring to a committee for regulating the affairs of France, and calling on persons to give in their subscriptions for the purpose of restoring the Orleans family, and dethroning the French Emperor, we should be told in the same way that such a proposition was legal. To do justice to the Solicitor General—not that I understand it—the distinction which he drew was this: If an individual pays his money, it may be misapplied; but, as it would be opposed to the principles of morality, to sanction a legal investigation as to whether the money was applied in disposing of the Sovereign for whose destruction, according to the terms of the advertisement, it was specifically to be applied, therefore, he says, an individual may lawfully subscribe. I doubt it. The hon. and learned Gentleman was not asked by what means such a person was to be prosecuted, nor as to the form of the indictment—that was not the technical question which was put; but whether a man could lawfully subscribe in aid of the object, which persons forming themselves into a public body, had undertaken to accomplish. I say they can not.


The question is, whether they would be liable to any legal proceeding.


It is true the question is put in that form; but the hon. and learned Gentleman is not asked to specify what exact proceedings should be taken; and it is impossible to escape from the difficulty by reference to the case of an individual, because the very document shows that he is only one of a number. I cannot understand the distinction taken by the hon. Gentleman, when he puts the case of a person who is supposed to subscribe to a fund set on foot by a number, and at the same time to isolate himself from a conspiracy; or the case of a fund to which contributions are made by foreigners resident in this country. Nobody ever heard of a distinction drawn in such cases between foreigners residing here, and natives of this kingdom; all alike are subject to the laws of England. And if it be unlawful for a body of British subjects to form a committee to collect subscriptions, and to dethrone the Emperor of the French, it would be equally repugnant to international and positive law—by which I mean the common law of this country—for them to meet together and subscribe for the purpose of overthrowing any other Sovereign. The law of nations does not depend on the nature of any Government; it is immaterial to us whether the State be a Republic, or whether the Government be absolute or Parliamentary, as long as we are living at peace with it; and, for my part, I hope we shall live at peace with all Governments. States are bound to behave towards each other with scrupulous impartiality, and with the strictest good faith. And I know nothing more mischievous—though the occurrence was, I believe, accidental, and the hon. and learned Gentleman admits that his answer may have been misunderstood—than that any Member of the Government, even for the sake of a little temporary popularity, should have the appearance of connecting himself with such a prominent person as Garibaldi, and in the face of Europe to sanction proceedings, which international law disapproves. The hon. and learned Gentleman, when he refers to an opinion of Lord Lyndhurst, shows that he approves of it; and, I must say, that it is an opinion exactly applicable to the question before the House. The noble Lord there speaks of a committee formed for an illegal object; here are members of a public body presuming to assemble themselves together, and by means of advertisements inviting persons to subscribe, it being directly stipulated that the amount raised shall be sent to Garibaldi, to aid in overthrowing the Government of the King of the Two Sicilies. It has been spread all over Europe that, in the opinion of the Law Officers of the Crown, there is no illegality in such a proceeding. I venture, with all humility, to say that if such an opinion were inadvertently given, it is a mistake. No contributions to be collected through a body, of which, by his subscription, the person makes himself one—and therefore responsible for their acts—can be legal, or in accordance with constitutional law, when it is openly avowed that these contributions are sought for the purpose of overturning the Government of any Sovereign with whom we live on terms of amity and peace.


Sir, I should not have said a word on this question if the hon. and learned Gentleman the Solicitor General had not cited as a precedent—or rather as an instance of the difficulty of convicting persons on a criminal charge of conspiring to commit offences against the laws of foreign countries—the case of Dr. Bernard. That case has nothing whatever to do with the matter we are now discussing. Dr. Bernard was not indicted for conspiracy at common law, but for an offence under a particular statute, and he was acquitted by a jury. Inasmuch as I was an advocate in that case, I shall refrain from stating any grounds of the acquittal but those which are publicly known. It was felt on that occasion that a statute had been perverted for the purpose of endeavouring, by the indictment of an individual, to relieve the Government from a political difficulty; and the jury were perfectly justified in the view which they took, because the Government were challenged to bring forward their legal arguments, and, those legal arguments being postponed, the defendant was acquitted on the facts of the case. Dr. Bernard was indicted, not for conspiracy at common law, as the hon. and learned Gentleman has told the House, but under a statute which every lawyer in Westminster Hall know was framed and passed to meet an entirely different offence from that with which the prisoner was charged. And therefore, when the Solicitor General states the difficulty of convicting persons of conspiracy, his observation must be taken to apply to the evidence; and if this is a conspiracy—and I, as a lawyer, have no doubt that it is—the hon. and learned Gentleman, I think, will find grounds for reconsidering the hasty and immature opinion which he has given on this subject. What clearer evidence to insure conviction can you have of the overt acts of a conspiracy than the payment of money by one individual, and its receipt by another? If a committee advertise for subscriptions, they ate surely sup- posed to be human beings congregated for the purposes of that subscription; and if a person pays to them a certain sum towards the object for which they have advertised, and they receive it, I want any lawyer to got up in this House and say what stronger evidence of overt acts can be afforded. The hon. and learned Gentleman, therefore, when he stated that persons under such circumstances were not liable to legal proceedings, answered, I think, a little off his guard, and gave rather a rash opinion. I deem it of great importance that this matter should be thoroughly understood on the Continent; and I feel that we are indebted to the hon. and learned Gentleman the Member for the King's County for having brought it forward. The hon. and learned Gentleman the Solicitor General has truly said that this is not as an offence against the Foreign Enlistment Act. It certainly is not. It has no more to do with it than with the Habeas Corpus Act; but there is a question to which the Foreign Enlistment Act does apply, and I ask the hon. and learned Member for the Kings's County to bring that forward on another occasion. I allude to circumstances to which the Foreign Enlistment Act expressly applies, to the case of parties who are now committing offences under that Act by carrying on the enlistment in Ireland of persons who are to be sent over to Rome, and there to join the army of General Lamoriciere. When the hon. and learned Member talks of the slaughter of priests, I think we may say with equal force that the transmission of recruits to swell the foreign army which is to take part in the massacre of the Pope's subjects, comes equally within the provisions of the Foreign Enlistment Act.


There should be no misunderstanding with regard to the principles by which every Government and every nation ought to be guided on subjects such as that now under consideration, and those principles I freely agree to be these:—You have no right whatever to interfere in the domestic affairs of another nation. That, unquestionably, is the rule of the common law, and the foundation of all legislation on the subject. If you wanted to exemplify this in your own history, the lecture which you read to the French king on the occasion of the revolt of your North American colonies would supply you with abundance both of principles and of reasoning. I quite agree, therefore, that, according to the common law of England, any subjects of the Queen who, either directly or indirectly, may supply money in aid of the revolt of subjects of any nation or Power with whom we are in alliance, commit an offence at common law. But, as I before had occasion to state, there is a very great difference and a long interval between the enunciation of that principle and the manner in which it is to be carried into execution. In proceedings of a criminal nature, or which are otherwise founded on any rule of common law, your only guide can he precedent and authority; and those hon. Members who speak most confidently on this branch of law would, I think, be quite unable to point out any case or decision in the books in which there has been any instance of a successful application of the general principle, in the shape of an indictment for this particular offence. That, however, is not exactly the point to which the attention of the House can be advantageously directed, although it was the precise point to which the remarks of my hon. and learned Friend the Solicitor General were directed by the very narrow and limited question which was put to him. When the right hon. Gentleman (Mr. Whiteside) indulged himself in that ridicule in which he is so successful, both of the answer which was given, and of the explanation which has been afforded, I could heartily wish that the accuracy of the right hon. and learned Gentleman and his knowledge of the subject had been equal to his powers of speech. I certainly should advise him never again to indulge himself in his usual vein of ridicule until he has thoroughly ascertained the facts of the case on which he is speaking. Now, the question put to my hon. and learned Friend was simply this—Had the persons subscribing to this fund rendered themselves liable to legal proceedings? Could any one imagine that by "legal proceedings" it was meant could a civil action be brought against them? Could the legal proceedings mean anything but a criminal prosecution? The hon. and learned Member for Marylebone says the Members of the Committee are conspirators; and that any persons subscribing to the funds might be included in an accusation of conspiracy. I should have been glad if the hon. and learned Gentleman had condescended to mention some instances that would have justified this conclusion. I was very anxious to find one when the Conspiracy Bill was under consideration, but I did not succeed, although I found enunciations of the general principle in abundance. I cannot therefore think that my hon. and learned Friend spoke unadvisedly or rashly when he said there was no ground on which an indictment could be laid against persons contributing to these funds. At the same time, I should have been very glad if my hon. and learned Friend had accompanied his remarks with the general statement—as he would no doubt have done if his attention had been directed to it—that all these things are contrary to the policy of the law, the object of which is, above all, that the peace of the Crown should be preserved. The law, therefore, prohibits anything that may endanger the peace between the Sovereign of England and the Sovereign of another State. That great principle of the law must be accepted by every person; and the common law of England, although it may have provided no particular remedy, yet in conformity with general good faith and expediency, lays down in the strongest manner the principle that all subjects of the realm are bound to abstain from every interference that tends to excite the subjects of another country against its lawful authorities. What those authorities may be is not the question. It matters not that they may be cruel, or tyrannical; that is not the question. If the sovereign be in amity with this country, it would be wrong and illegal for any persons hero to interfere with the affairs of his kingdom. An hon. Gentleman has said that the committee formed for the collection of those subscriptions is open to an indictment for conspiracy. I must, however, observe, that according to the papers, almost the whole of that committee is constituted of foreigners. Now, I do not mean to say that the principle of the law does not extend its prohibition to all persons who are permanently resident within this kingdom, and who owe allegiance to, as they receive protection from, the Crown; but I do not believe that that principle has ever been established upon authority, and I therefore warn the House against receiving with confidence the statement that there has been (as the right hon. and learned Gentleman opposite seemed to say) a positive enunciation of the law to that extent. I confine myself solely to the question of the common law, which lays down the principle I have stated in the strongest possible form, and it is therefore the duty of the Government to take care that that law is not violated by any of the subjects of the realm.


I think if the answer of the Solicitor General had been at the time accompanied by all the explanations, the comments, and, I may add, the solemn lecture just delivered by the Attorney General, that answer would have done very little harm; and, probably, there would have been no necessity to trouble the House again with a discussion on the subject. I entirely concur with one part of the speech of the hon. and learned Solicitor General that the importance of the question cannot tie overrated. But there are two grounds which render accuracy in dealing with this question especially necessary. The first is the effect of inaccuracy on our relations with foreign Powers, which cannot fail to be seriously disturbed if a rash and inaccurate answer is spread abroad as having been given by the Government in this House. The other reason that renders accuracy of great consequence is this,—the law officers of the Crown know perfectly well that their answer will be read by foreigners in this country; and persons who are amenable to the law of the Queen, are likely to regulate their conduct by this statement of that law as given officially in this House. It would be much to be lamented, if, after an opinion had been given on the part of the Crown in the House of Commons, criminal proceedings should be taken against any persons for misdemeanour, and the persons indicted should be able to say they trusted to the opinion given by the legal advisers of the Crown as the true exposition of the law; and that when they acted in the manner complained of they thought they had competent authority for what they did. I think with the hon. and learned Member for Marylebone that the hon. Member for King's County (Mr. Hennessy) has done good service in bringing this subject forward. It has been reduced to the smallest possible compass by the definition of the law given by the Solicitor General. He admits the principle laid down by Lord Lyndhurst,—that if a course of united action is taken to effect an illegal purpose, by any number of persons, that amounts to a conspiracy, and all who take part in that action are liable to be indicted for the conspiracy. The question, then, is this:—Does a subscription to funds raised with the object of subverting the government of another State render the particular individual subscribing liable to indictment for conspiracy? The Attorney General wants an authority for such an indictment. I think the point is clear; I think an illustration may be given, of which the House will see the force, and which docs not require much legal acumen to appreciate. Suppose subscriptions were advertised for in London with the object of raising a not in Yorkshire, would any person say that a person subscribing to that fund, for the promotion of that purpose would not be guilty of conspiring to effect it? I cannot conceive what act of conspiracy can be more overt or more definite than handing money to a common fund when it is known that the fund is to be applied in a particular way. But the Attorney General says there is a further difficulty that must be attended to. He says, "True, the funds are advertised for in this country, but the persons advertising, though residing here, are foreigners." It is the first time I ever heard, when it is a question of the application of the common law, that foreigners residing within the Queen's dominions, do not owe perfect and complete allegiance to the Crown, and are not liable to punishment for every offence for which penalties are inflicted by that law. Certainly questions might arise, under particular statutes, whether the words are large enough to include foreigners, or whether they are limited to British subjects. That must depend on the words of the particular enactments. But to say that the common law does not extend to every man, woman, and child within the jurisdiction of the Queen is a proposition that I never expected to hear from an Attorney General of England. [The ATTORNEY GENERAL: I did not say that.] I am glad that the simple application of the argument has drawn a negative from the hon. and learned Gentleman. That application, however, I submit is fatal to the distinction which he attempted to draw. It is quite patent that whether the parties are foreigners resident in this country, or natural-born British subjects they are equally liable to an indictment for a conspiracy for contributing to such a fund as that described in the advertisement alluded to.


The importance of this question cannot be overrated. By the interpretation of the law on this subject, the interests of England and Europe may be affected. If what is being done in the present instance is legal, might also be done in the case a neighbouring country, where the interests of England would be more nearly concerned. If this subscription is illegal by the law of nations, being made openly without any attempt to repress it, the King of Naples might immediately, and without a declaration of war, seize the property of all British subjects in his dominions. I assent to the proposition of the Attorney General, that this subscription is illegal; the Government has not prevented the subscription; and at this moment we might be treated as virtually at war with Naples. I do not say this without authority; I have high authority for the statement—one respected throughout Europe. There are passages in Vattel, which will distinctly show the peril to which we are at this moment exposed in consequence of the Government not having disapproved and endeavoured to stop the subscription. The law of nations is part of the common law of this country. And it is the recognized law of Europe that whatever tends to the destruction of peace, is a violation of the law of nations. How, let me ask, would the case stand between two countries which happened to be at war, and a third which desired to be neutral? Why, it is evident that that third State must exercise an absolute neutrality in order to effect her object, and must not assist either party with subscriptions; and if that be so, how much stronger is the case when the subjects of a nation revolt against the constituted authorities? It is, I may add, illegal, even if no Foreign Enlistment Act were in existence, to allow the recruiting of soldiers here in favour of one country against another with which we happen to be on terms of amity, or in favour of subjects who have revolted against their own established Government. Vattel lays down the doctrine that it is a violation of the law of nations to invite subjects to revolt against their lawful Sovereign, although they may have substantial grounds to complain of his rule. That opinion distinctly applies to the present case, and is borne out by Chancellor Kent and other eminent authorities. The Court of Common Pleas, moreover, decided that it was illegal to subscribe or enter into contracts for the purpose of affording assistance to subjects who rebelled against their Sovereign; and it matters not, let me remind the House, whether that assistance be rendered by means of troops, or vessels, or money. Let me suppose, that we had, in the present instance, to deal, not with a movement against the King of Naples, but with reference to the Emperor of the French, and that we were to invite subscriptions against him in support of his subjects who had revolted against his authority. What course would it, under those circumstances, be open to him to take? Why, he would have a perfect right to call us to account for the course which we allowed to be pursued, and to enter into hostilities against us without even making a declaration of war. Assistance rendered by France to America led to a war between England and the former country, just as our proceedings now may lead to a war with Naples. We are, indeed, told by the Attorney General that the principle of those proceedings is opposed to the policy of the common law; but the hon. and learned Gentleman, I think, somewhat astonished the House by intimating that there was no legal remedy against those who took part in them. It is contended that you must in those instances proceed as for a conspiracy; but I should like to know what evidence of conspiracy there is in the case of an individual who libels a foreign Sovereign, for being guilty of doing that for which Peltier was tried and convicted, on the ground that the act tended to embroil the subjects of the King of Great Britain with a foreign State. It is then, I maintain, an offence of the most serious description for any individual—even though he may do it without concert with others—openly to invite subscriptions—it matters not whether they be or be not collected—for the purpose of aiding the revolt of the subjects of a foreign country against their Sovereign. Such a proceeding is a direct violation of international law, and ought to be held liable to punishment. ["Oh, oh!"] Hon. Gentlemen may dissent from that view; it may not be thought necessary to enforce the law; but it is, I submit to the House, a most important question whether we have, or have not, lone acts which place us in a condition leading to actual war with the King of Naples. I may also remark that if it goes forth that the acts of which we are speaking are illegal, but that the law of England cannot touch the offenders, the consequence may not improbably be that we shall have persons coming over to this country from abroad and openly soliciting subscriptions for this purpose. I maintain, therefore, that the subject is one of considerable importance, and that the commission of acts by which the peace of the Queen and her subjects is likely to be disturbed, and by which this country may be involved in war, is in itself a serious misdemeanour.