HC Deb 04 June 1861 vol 163 cc571-97
MR. DENMAN

said, that he rose to bring forward the Motion of which he had given notice for the appointment of a Select Committee to consider the allegations of the petition of the Baron de Bode, presented on the 18th of April last, and to report thereon to the House. A fair decision on the question could not be come to unless every one who took part in the vote heard every part of the argument. If he could insure that every one who heard him would listen to the ease throughout, and that no others would take part in the decision, he should feel as confident of success as he ever did in any case upon which it had fallen to his lot to address any audience or tribunal. Before he proceeded to make the observations which he should have to make upon the claim itself, he wished to anticipate some objections which had been advanced over and over again, and which might be advanced on the present occasion. In the first place, it had been said more than once that this was a stale demand, and that the claimants had slept upon their rights; but he should convince the House that the Baron de Bode, so far from having slept upon his rights, had incessantly and by every means in his power pressed those rights upon the attention of Parliament, and upon all those from whom he had the hope of obtaining redress. It might also be said that it was resjudicata, but he would undertake to satisfy the House that this was not a question which had ever been decided by a competent tribunal. He would also show that the Motion he submitted was the proper mode of proceeding. Parliament was always eager for precedents, and precedent was here in Baron de Bode's favour; because in 1834 the House of Commons had appointed a Committee to investigate his claims, but the labours of that Committee were brought to a premature close by the dissolution of the Parliament, and for some reason never resumed. True, in 1854, the matter was again brought forward by the lion, and learned Member for Greenwich (Mr. Montagu Chambers), when his Resolution was rejected; but it must be remembered that the Motion made in that year was not one like the present, simply for inquiry; but, if carried, it would, have required the House to provide in the Estimates for the satisfaction of the Baron de Bode's claims without any inquiry of its own. Yet nothing but the eloquence of the then Attorney General (Sir Alexander Cockburn) and the right hon. Gentleman the present Chancellor of the Exchequer prevented a decision of the House in favour of the Resolution in 1854, because certainly nothing could have been more futile than the arguments which those eminent men used on that occasion, arguments which apparently must have been supplied to them on the spur of the moment by some official underlings. He would state to the House why it was that he had undertaken to bring forward the case. Shortly after he had the honour to obtain a seat in this House, an hon. and learned Member on the the other side of the House, whose engagements prevented him from giving sufficient attention to the matter, put the papers in his hands, and requested him, when he had sufficiently considered them, if he thought real ground for further inquiry existed, to bring the case before the House. Pie had carefully perused those papers, and come to the conclusion, that a strong case for inquiry existed; and, having kept the papers for a long time, he felt that he should not be acting fairly towards the Baron de Bode if he shrunk from a task which, if he had consulted his own comfort alone, he should certainly have long ago declined. He was aware of the disadvantage under which he laboured in attempting to address so thin a House On such a subject, but with their indulgence he believed he should be able to show all who would listen to him that it was a case not only peculiarly affecting the honour of the country, but calling upon Parliament in its highest character, as the grand inquest of the nation, to see that that right should be done to the claimant which had so long been withheld from him. It was not a case which rested wholly upon law, for then the ordinary tribunals would be the proper place to seek redress; but it was one which came within the meaning of a phrase which had been recently employed by the noble Lord at the head of the Government with reference to another matter—Summum jus, summa injuria—a case where by insisting on strict legal measure the highest injustice would be committed, because indisputable moral and equitable claims would thereby be destroyed. The case generally stated was this—In 1793 the French Government confiscated the estate of the father of the present Baron as an emigré, and afterwards handed over to the English Government a large sum of money to cover this and all other claims in respect of which that sum was paid. The main reason why he did not receive that money was because in an Act of 1819 it was recited, contrary to the fact, that all British subjects who had claimed in time and who were entitled to that fund had been entered upon a register. By that Act the absolute disposal of any surplus which might remain after the payment of the various claimants was to be left to the Lords of the Treasury, and it was consequently held by the House of Lords that that provision, was fatal to the Baron's claim. It was not until thirty years after the passing of the Act, and the disposal of the surplus, that it was many years after held that this recital was fatal to the Baron de Bode's claim. It was necessary, therefore, to refer to 1818 in order to see what the claim of the Baron de Bode was; and if he had a just claim at that time, then it must be admitted that Parliament had done him a great wrong, of course, unwittingly, when it passed the Act of 1819. He should now call the attention of the House to the nature of the claim of the Baron de Bode. By the fourth additional article of the Treaty of 1819, a right was given to recover for the loss of property, moveable or immoveable, belonging to the subjects of the King of England, unduly confiscated by the French authorities. The words of the treaty were as general as possible. Now, he undertook to prove, first, that the Baron de Bode was a British subject, and that he was a British subject within the meaning of the treaty; secondly, that he was possessed of a landed estate in France; thirdly, that it was unduly confiscated within the meaning of the treaty; fourthly, that money was paid by the French to the English Government, to satisfy the claims for property so confiscated; fifthly, that after the payment of all claims there was a surplus which ought to have been appropriated to the payment of the Baron de Bode's claim; and sixthly, that the late Baron did everything he could do to entitle himself to the payment of his claim. The first point he had to establish was that the last Baron de Bode was a British subject within the meaning of the treaty, and, if the establishment of this point depended on the law of England, there was no more doubt of the Baron de Bode's right than there was of the right of any one of them to be considered an English subject. The Baron de Bode was the son of an English mother and a German father. The father married in 1775, and the Baron de Bode, the claimant, was born in 1777 at Loxley Hall in Staffordshire, the residence of his mother's father. He was for some few years brought up in the family of the Kinnersleys, in Staffordshire, and was, therefore, to all intents' and purposes a British subject according to all interpretation of English law. It was argued that he was not a British subject at all, or a British subject within the meaning of the treaty, But the case of Eneas M'Donnell, in Foster's Crown Cases, where a person similarly situated to the Baron de Bode had been sentenced to the penalty of high treason, showed the Baron de Bode must be considered a British subject. If exposed to the penal consequences of being a British subject, a person was of course entitled on the other hand to the rights of a British subject. Then it was said that the Baron de Bode ceased to be a British subject, because he lived in France from an early age. The Baron de Bode be it recollected was born in England, and Lord Hatherton stated in the House of Lords that he had known him in childhood, and believed him to be to all intents and purposes a British subject. It was then said that the Baron de Bode was not a British subject within the terms of the Convention. He had several answers to that objection. His first was that between 1815 and 1818 the French Commissioners expressed a doubt whether the Baron de Bode was a British subject because his father was a German. On that occasion a case was laid under this very treaty before the high authority of Sir Samuel Romilly, and his unhesitating opinion was that he was to all intents and purposes a British subject. This opinion was sent to the French Government and the French Government acted upon it by withdrawing the objection, and thus acknowledged that the Baron de Bode was entitled to be compensated out of the money which they sent to this country. Again, Lord Lyndhurst, Lord Brougham, and the late Lord Truro, expressed an unhesitating opinion in the House of Lords that the Baron de Bode was a British subject with in the meaning of the treaty. There was this still more cogent reason for holding the Baron de Bode a British subject, that among fourteen or fifteen cases decided before the Privy Council the current of decision, without a single exception, was that a person born in England was entitled to compensation as a British subject unless there had been some solemn act of naturalization to divest him of the character of a British subject. Again, there was the strong opinion to the same effect, of Mr. Pollock, in 1834, although in his forensic capacity of Attorney General he afterwards opposed the claim. What was there to divest the Baron de Bode of his right to be considered a British subject? Was it that he was possessed of immovable property in France. If that were so, the whole treaty was a nullity, for it recognized the right of persons holding such property to be compensated. Was it because he was a German? Why the essence of the claim was that whether his father was French or German, the Baron was a British born subject. It was said that he owed allegiance to France. But his father was not a Frenchman but a German, and he possessed property in Germany as well as in France. At the time the spoliation took place he was only four teen years of age, and, therefore, it was idle to pretend that he could direst himself of the rights he then possessed. The Baron de Bode, therefore, having been born in England had a right to claim the privileges to which he was entitled as a British subject under the treaty. The petitioner's father was the possessor of a landed estate, consisting of the town and castle of Soultz, in Lower Alsace. That province, by the Treaty of Westphalia, was annexed to France, but by that and subsequent treaties the old German tenures were declared to be valid. The tenure was what was called a German male fief, which corresponded to what in English law would be called an estate tail, which could not be cut off. The right of investiture to the fief was in the Archbishop of Cologne. From 1788 to 1791 this was the state of things. The father was tenant for life; the son had a remainder-in-tail, a vested remainder which he could not cut off. In 1791 the father made over his rights to the son, and the cession took place at a large gathering of the tenants before a notary public in the most solemn manner. The right hon. Gentleman the Chancellor of the Exchequer—who played junior to the Attorney General on the occasion of Mr. Chamber's Motion—strenuously argued that there was no proof of the consent of the feudal superior; but it was plain that a person with a vested remainder wanted no such consent. Whether the father, however, made a valid cession or not, the son had still the remainder, and that was destroyed by the confiscation, and would of itself entitle him to claim. About 1793 the father and son, dreading what might occur if they remained in Alsace, took refuge with the Austrian army, and in 1793 their estates were confiscated by the revolutionary Government, by which they were sold and the money appropriated. It was contended that the confiscation was not an undue confiscation, as the Government by whom the act was done were in possession of the soil of France; but the object of the treaties of 1814 and 1815 with the legitimate Government of France was to do justice to those who had been spoliated. Every confiscation by the arbitrary decrees of the revolutionary Government was unfair and illegal, and that was the view which the English House of Commons ought to take, because those were not days when England so easily recognized new Governments, and it never did recognize the revolutionary Government of France. Then it was said that the father and son were emigrants, and, therefore, the confiscation not undue; but it was held by Sir William Grant that it did not follow that the treaty did not apply because confiscation took place after emigration. The next objection was that, although it was the property of a British subject, it was not confiscated as the property of a British subject, and, therefore, not within the treaties. This point was strenuously insisted upon by the Chancellor of the Exchequer, and mainly influenced the votes on a former occasion of the hon. Member for North Warwickshire and the hon. Member for Greenock; but it was completely answered by the case of the Count de Wall, as reported in 3 Knapp's Privy Council Reports. Drummond's case, reported in 2 Knapp had no bearing on the present question, because there the claim to be recognized as a British subject was made under a special statute as to Protestant inheritances by the grandson of a man born in England, and not as here by a British- born subject. Fanning's case in the same volume was more to the point. Fanning was a natural born British subject, who re-Bided in France, where he acquired the title of Count de Fanning, and was looked upon as a French subject. He took out letters of naturalization, but, as they were not properly completed, the Privy Council held that he still retained his birthright as a British subject. It could not be pretended that the Baron de Bode had ever become a Frenchman by any solemn authenticated act; and he submitted in spite of what had been argued formerly that the accident of birth was sufficient to constitute him a British subject within the meaning of the treaties. On a former occasion it was urged by the Attorney General and the Chancellor of the Exchequer that the Convention only applied where the persons whose property was confiscated were referred to in the second Article of the Treaty of Commerce in 1786, but that treaty had no more to do with the subject than it had to do with any other treaty with any other country on any other subject. On the 20th of November, 1815, a definitive treaty was entered into which recited the fourth additional article with regard to property of British subjects, and it was upon the Treaty of 1814 and the conventions added to the Treaty of 1815 that the actual question of the Baron de Bode's title rested. In Article 1 of Convention No. 7, it was stated that the subjects of his Britannic Majesty having claims upon the French Government who in contravention of the second article of the Treaty of Commerce of 1786, and since the 1st of January, 1793, had suffered on that account by the confiscations decreed in France, should, in conformity with the fourth additional article of Treaty of Paris of 1814, themselves, heirs or assigns, be indemnified. But it was not under that clause, but without and entirely beside it, that the Baron de Bode's claim arose. In the fifth Article of Convention No. 7, there was this provision— In order to determine the capital due on immovable property which belonged to British subjects, and had been sequestered, confiscated, and sold, proofs of two things should be required—first, the deed of purchase proving proprietorship; and, secondly the act proving the facts of the sequestration, and of the confiscation against themselves, their ancestors, or assignors, subjects of His Britannic Majesty. That was all that was required, and that clause was perfectly free from any mixture with the second article of the Treaty of 1786. The Treaty of Commerce of 1786 referred only to persons temporarily residing in France for the purpose of trade and commerce. In case of any misunderstanding arising between the two Crowns, the subjects of each Power were to be allowed to continue their residence without being disturbed, as long as they conducted themselves peaceably. If they became suspected by their conduct, they were to have twelve months' notice before they were required to leave the kingdom. It had been said that Baron de Bode did so offend by acting contrary to public order. But it was the French revolutionary Government that decided he had done so, simply by the act of emigrating. But the Treaty of 1786 did not refer to immovable property at all; for down to a later period, by the law of France, and the Droit d'Aubaine, no British subject could hold immovable property in France. On a former occasion the right hon. Gentleman the Chancellor of the Exchequer maintained that it was only to cases in which persons merely residing temporarily in France that the Treaty of 1815 applied. But it really applied to claims of all kinds and descriptions. It was signed on the 20th of November, 1815; and a term of three months from that date was allowed to persons in Europe to make their claims for compensation; to those in the colonies a term of six months was given. After the expiration of those periods British subjects, who had not claimed within the time, were not to be entitled to compensation; and the next point of the case was that money was paid by France to England to indemnify those British subjects whose property had been confiscated; and the French Government was aware that Baron de Bode was one of the persons claiming. The opinion of Sir Samuel Romilly was sent to the French Government, and it admitted that it was valid. It was a curious fact that so late as in 1853, when the case had run the gauntlet of the courts of law, Lord Lyndhurst produced to the other House of Parliament, a letter from M. Guizot, written in answer to certain applications made by the Baron de Bode. It was perfectly obvious from that letter that between the date of the signature of the treaty, and the period when the case could be brought forward for adjudication, the French Government admitted that Baron de Bode was a British subject. Documents signed and counter- signed passed on the question. After he had in vain attempted to obtain redress from the British Government, the Baron applied to the Government of France to see if he could obtain some justice; but in doing so he guarded himself against admitting that his true claim was against that Government. The answer of the French Government was that money had been paid to meet all claims including the Barons. The reports of many cases before the Privy Council showed that that high Court had proceeded upon the basis that persona situated like the Baron de Bode had valid claims under the treaties.

The next point was that after payment of all claims under the treaty there still remained a large surplus, and that surplus, he contended, was charged with a trust to satisfy the claim of the Baron de Bode. It was established upon the trial at law that there had been at a certain time a balance of £482,752 in the hands of the Government in respect of this Convention No. 7, and it appeared that with interest it had accumulated to £566,139 in 1821. What was the application of this sum? Out of the sum of £566,139, £196,000 odd was paid to persons who claimed under the Convention No. 7, and whose claims had been presented after the time prescribed for receiving claims. He did not say that so far as the law was concerned that was an illegal appropriation, but he said that in considering Baron de Bode's claim it would be hard upon him to say that the nation was not to be responsible to him because the Treasury chose to be too liberal to others. After all claims had been satisfied there still remained a sum of £200,000 not in any way to be considered due under the Convention, which ought in justice to have been appropriated to the payment of Baron de Bode. The next point which he should submit to the House was that the claimant had done nothing to disentitle him to compensation. In 1818 his claim was an incontestable right in law, and it was only in consequence of the statute of 1819, which gave to the Treasury an absolute right over the disposal of the surplus, that Baron de Bode lost his right. It was then a case for Parliamentary inquiry, with a view to compensation. The treaty was dated November 20, 1815, and the claims were to be sent in within three months. The Baron do Bode sent his claim on the 9th of February, 1816, to the Due de Richelieu, then Prime Minister of France, the English Commissioners not having arrived at that time. The Due de Richelieu took objection to the claim, on the ground that the claimant was not a British subject, inasmuch as he was the son of a German; but Sir Samuel Romilly's opinion having been taken, he pronounced the claimant to be a British subject, and the objection was withdrawn. It would be unjust to say that the claim was not made in due time, because it had not been made to a particular person when every possible endeavour had been made to comply with the requirements of the Convention. In the year 1818 a new Convention was executed, under which France paid an additional 60,000,000f., and the English Government undertook to dispose of all the claims. The Commissioners upon whom the duty of investigating the claims was imposed told Baron de Bode that unless he could prove that his property was confiscated under the decree against British subjects they could not allow it. He could not prove that, because his property was confiscated as being that of an emigré. [Mr. GLADSTONE: Hear, hear!] The right hon. Gentleman cheered that admission; but the decisions of the Courts went to show that that ought not to have excluded his claim. In Fanning's case, in Count de Wall's case, and in others, the property had been confiscated on the same ground, and yet the claim had been allowed by the Privy Council. In consequence of that intimation, however, the Baron did not complete the evidence as to the cession, and the Commissioners then made an award, deciding against him on both points. That award being founded upon a fact which had nothing to do with the matter at issue—namely, the property not having been confiscated under the decrees against British subjects, proof of this having been required as a sine quâ non by the Commissioners, was bad in law. In 1819 the Baron appealed to the Privy Council against the decision of the Commissioners, but before the case came on he received a letter from the Secretary to the Commission, stating that he must not produce any new evidence. The Privy Council heard the case so crippled, and they held that they could not over-rule the decision of the Commissioners, and that in fact there was not evidence before them which would establish the validity of the cession. He then attempted to obtain a rehearing of his case; but was told that as the decision had been confirmed by the Sovereign it was too late to reopen the matter. The next step he took was to appeal to the Court of France, whose answer was that they had already made compensation for the claim. These details were necessary to show that the Baron de Bode had not slept on his rights, as some alleged, but had urged his claims whenever opportunity offered upon the consideration of the country. The treaty was in 1815, the award was in 1822, the appeal to the Privy Council in 1823, and in 1826 the rehearing was refused. In 1828, Lord Derby, then Mr. Stanley, who had always taken a very warm interest in the case, brought forward a Motion similar to the present for a Select Committee, and in 1830 he made a further Motion to the same effect. In 1832 and 1833 the House was counted out when the subject was renewed, but in 1834, in a House of 170 Members, the Government agreed to the appointment of a Select Committee. The Committee sat until the end of that year, and had nearly agreed to their Report when the Session ended. They suggested that they should be reappointed in the next Session, but in the following year the Government refused to assent to the reappointment of the Committee, Lord Cranworth, then Solicitor General, alleging that the Motion was a Quixotic attempt to turn the House into a Court of Appeal. Several other Motions were ineffectually brought forward from time to time, but, finding that the House of Commons were indisposed to do him justice, in 1838 application was made by the Baron de Bode to the Court of Queen's Bench for a mandamus addressed to the Lords of the Treasury. The Court, however, held that a mandamus to the Crown to command itself would not lie, and the Baron de Bode was then advised to try a petition of right. This petition came on at first before Commissioners, and, with one exception, all the facts contained in it were found by inquisition. The Crown had afterwards traversed the inquisition, and also pleaded the Statute of Limitations. The case was tried at Bar before the whole Court of Queen's Bench and a special jury. The Crown lawyers exerted all their ingenuity during a trial of four days duration, but without success; for every fact found by the inquisition was affirmed by that special jury on the trial at Bar. The matter then came before the Queen's Bench on the points of law. It had been subsequently contended in the House of Com- mons that the opinion of the Court of Queen's Bench had been against the Baron de Bode on all points. But no lawyer would have argued thus, because it was clear that the Chief Justice had guarded himself against giving any opinion on the merits of the claim, and that the question had been decided by the Court on narrow technical grounds which had nothing to do with the merits of the claim. The case then came on appeal before the Exchequer Chamber, where the decision was given against the Baron on the ground that the surplus had been disposed of according to the strict interpretation of the 59 Geo. III., and that the Baron had, therefore, no legal claim. The House of Lords on appeal affirmed the decision of the Exchequer Chamber, but those two tribunals, like the Queen's Bench, had carefully guarded themselves from giving any opinion on the merits. The period from 1839 to 1851 had been occupied in these legal proceedings, and there was no pretence for saying the Baron during that interval had slumbered on his rights. Lord Lyndhurst had been so shocked at the hardship of the case that in 1852 he moved in the House of Lords for a Select Committee to inquire into the subject, which was granted by the Government of the Earl of Derby. Lord Brougham, Lord Truro, Lord Lyndhurst, and other Peers, were Members of the Committee, which reported every single matter both of law and fact in the Baron de Bode's favour, and expressed their opinion that the case was one of great hardship, which they recommended to the favourable consideration of their Lordships. In 1853 a Motion was made in the House of Lords with the view of acting on that Report, but it was urged that their Lordships were not the proper tribunal to act, as it was not in their province to vote the money. In 1854 Mr. Chambers, in the House of Commons, moved a Resolution affirming that the national good faith required that the just claims of the Baron de Bode should be satisfied. It was urged, however, with some reason, that the House of Commons, which held the purse strings of the nation, could not come to such a Resolution upon the Report of the Committee of another House. He now, therefore, asked the House to institute an inquiry of its own, which should satisfy its own conscience. That Motion of Mr. M. Chambers was rejected by 81 votes against 67. The Attorney General of that day said that Lord Stowell had held the cession to have been a fraudulent one; but if hon. Members referred to the judgment of that noble Lord, he thought they would be of opinion that he had not gone that length. Lord Stowell said it appeared that the claimant had failed in proving his ownership of the property; but it was not surprising that he should have done so, because he had been stopped by the Commissioners telling him of certain requirements which he had not the means of complying with, and which were not necessary. It was a mistake to suppose that the Baron de Bode objected to the fact of other claimants having been paid. What he objected to was that his claim was left unsettled, while claims had been settled in cases in which the British Government had a right to have gone to the French Government for a settlement, and so that money bound with a trust for him had been otherwise applied. On the occasion to which he was now referring Lord Chelmsford, then Sir Frederic Thesiger, observed, that after the judicial decision of the Privy Council in the case, a mandamus would not lie; but even if that were so, it ought not to prevent the House of Commons from doing justice to the Baron de Bode. And in reference to that House, he appealed to hon. Members whom he saw entering the House at that stage of the debate to bear in mind that justice could not be done unless they heard all the arguments on one side and the other. That was the substance of the arguments used in the debate of 1854. He apologized for troubling the House at such length; but having, as he believed, an honest claim to defend, he felt it his duty to answer all the objections which had been raised on former occasions. It was said out of doors that the claim was so enormous that the House of Commons would never be got to entertain it. He did not believe that that was the view which the House would take; and, indeed, it was one which had been repudiated over and over again. He had no acquaintance with Baron de Bode but what he derived from this case, but he could see that that gentleman had shown a fair and earnest desire to have his claim investigated; but he did not believe that Baron de Bode would be so absurd as to suppose that because the claim, if the interest at 5 per cent were calculated, would amount to nearly a million of money, therefore the House would be bound to pay a million of money on the Report of the Committee. If a Select Committee were appointed, it would be found out that there was a very large sum unappropriated according to the law as existing before the statute of 1819, which the country had had the benefit of, and which ought to be paid to satisfy the claim of Baron de Bode. The jury on the trial at Bar had found that the value of the property confiscated was upwards of £300,000. Supposing it should be established before a Committee that Baron de Bode was entitled to some money (not, indeed, a million, unless the amount were calculated in an unreasonable way), he did not think so ill of his countrymen as to suppose that they would object to the payment of the obligation, for he believed that in that case they would, on the contrary be glad, by discharging the debt, to be relieved from the burden which they must feel on their conscience so often as they heard the case of Baron de Bode mentioned. He believed that they would gladly submit to an increase of the income tax to the extent of a third of a penny, or a half-penny, in the pound, rather than remain in the belief that an honest claim upon the nation remained unsatisfied. Again apologizing to the House for the length of time he had trespassed upon their patience, he left the case in their hands, believing it to be a just claim; asking them, however, not to decide upon it themselves, but to appoint a Committee who might investigate the accuracy of the statements which he had brought forward.

Motion made, and Question proposed, That a Select Committee be appointed, to consider the allegations of the Petition of the Baron de Bode, presented to this House on the 18th day of April last, and to report to this House thereon.

THE ATTORNEY GENERAL

said, his hon. and learned Friend had maintained in a speech of three hours and a quarter a case which, he said, was incontrovertible. When a case, however, admitted of controversy some time must undoubtedly be granted to those who had to meet the various topics which had been urged. He was ready to admit that the hon. and learned Member had urged the claims of the Baron de Bode with much ability, but, at the same time, his advocacy bad been as deficient in modesty as it was remarkable for pertinacity. ["No, no!"] Did not the hon. Member more than once declare that all that had been said in this House against the claims of the Baron de Bode was characterized by sophistry, fal- lacy, and a desire to mystify the House upon the question? The Motion was first raised in the House of Commons by Mr. Stanley, now the Earl of Derby, when Lord Lyndhurst was Chancellor. It was resisted by the Government, and rejected as destitute of moral justice. It was brought forward again when there was another Government, and it was again resisted. It was brought forward again when Sir Robert Peel was Premier, and was again resisted by the advice of the Lord Chancellor, Lord Lyndhurst, and the law advisers of the Crown, and was rejected. It was brought before the House of Commons in 1853 a second time, and rejected. It was finally brought before the House in 1854, and discussed at great length, and again rejected. Some of the ablest Members both of that and the other House of Parliament had given it as their opinion that no foundation existed for the claims; and yet the lion. Member declared that all the arguments employed against them were nothing more than a tissue of sophistry and mystification. How long were such claims as these to be open to discussion in that House? They were admitted to have no foundation in law, and on every appeal to Parliament a decision had been given against them. What was to be the limit in urging such claims? Was the case of the Baron de Bode to be brought forward whenever any young lawyer who had a seat in that House chose to do so? That seemed to have been the case from time to time, and he was ready to admit that he himself had been infected with erroneous impressions on the subject. He was led in 1854 to consider the question more closely, and to devote his time and attention to it; and it was in consequence of the close examination he had thus made that he was now able to state the reasons why he could not advise the Government and the House to recognize the claims urged upon them. He did so under a feeling of great responsibility. The House had a right to require from a person holding the situation he did a bond fide opinion, carefully and conscientiously formed; and he was the more inclined to do so because he felt much compassion for the present claimant, who had been brought up in the strong belief which his father entertained, that he had a rightful claim to the money now demanded. That belief was delusive, but it had been created by the opinions of the lawyers to whom the case had been entrusted. He would put before the House the leading features of the case. His hon. and learned Friend said that the late Baron de Bode was a British subject; but a fallacy lay at the bottom of that statement. It was true that in the British dominions he was a British subject, but it was equally true that as between Franco and this country he was not a British subject. It was a common saying, referable, probably, to the insularity of our lawyers, that a man was a British subject because he was born in England. This was not necessarily the case. Suppose an Englishman and his wife were on a visit to Paris, and that during their stay there a son was born who was brought over to England a month or two afterwards, and there brought up and educated with English tastes, ideas, and feelings, could that child be called a French subject? Would he not in after life, whenever he had occasion to do so, put forth his claim to be a British subject? The late Baron dc Bode, the father of the present claimant, had, no doubt, been born in England during a short visit paid by his father and mother to England, but he had been very soon after his birth taken back to France; he had been educated in that country, and must, therefore, be regarded as having been for every political and legal purpose a French subject. That was the point which constituted the real foundation of the whole case, which must be determined in accordance, not with the principles of English, but rather of international law. Taken in that point of view, the mere accident of birth was wholly immaterial; the fact that a person was a citizen of a particular country, and performed there all the duties incidental to citizenship, stamped him with the character of being a subject of that State. When the French Revolution had broken out the French Government de facto had a clear right to exercise control over those who were actually the subjects of France; while, upon the other hand, there were resident in that country a number of persons who were indisputably British subjects, and who, as such, had a right to claim protection from the British Crown, to which they preserved their allegiance. The language of the treaty to which reference had been made clearly pointed to persons so situated, the words—"His Britannic Majesty's subjects"—that was to say, persons who owed allegiance to the Crown of England—being those which were employed. Now, it was clear that neither Baron Charles de Bode, the grand- father of the present claimant, nor the late Baron, was in the position of a person who came within the scope of the treaty as a person recognized as owing allegiance to the Crown of this country. The Commissioners found that the grandfather of the present claimant was one of the French noblesse, residing in Lower Alsace, where he had purchased a large estate, and was a great territorial proprietor. His son, the father of the present claimant, was included in the entail, and, therefore, it was to his interest to consider himself a French subject. Further, it was found that he was in the French service, and a knight of the Order of St. Louis, and in every respect a subject of France. Baron Charles, moreover, when the troubles of 1791 began, adhered to the dynasty of the King of France, and was in every sense a Royalist; but, having some property to preserve he hit upon the following device to effect his object:—His son, who, at that time, was a boy of fourteen years of age, happened accidentally to have been born in England—accidentally, inasmuch as the mother had not come over here with the view that her offspring should be a British subject—and it was hoped that that fact would entitle him here, although he had been brought up and educated in France, to call himself an Englishman. That being so the father had transferred his property to the son, in order that it might be protected against the lawful authority which the French Government de facto might exercise in its regard. The transfer was, however, in reality a merely colourable and delusive act; and the French Government, seeing through the device, confiscated the property as being the property of the father. He might further observe that, whether they confiscated it as the property of the father or of the son they had a right to do so. The act might have been arbitrary and unjust, but it was a legal act. It was the act of a Government existing de facto. First, the status of the father and of the son at the time of the confiscation was confessedly that of subjects of France. Secondly, the property confiscated was professedly French property, held by a French title, possessed by a French citizen, and the ownership of which placed the individual in a particular rank in France—namely, in that of one of the noblesse of the country. What, then, was the aim for which the property was confiscated? It was an act done by a French subject which France had made an offence. They both, father and son, left their country, abandoned their property, and joined the Austrian army, which was then on the point of invading France. The result was that there was a law from which a subject of France could not appeal, which was only binding on a French subject in respect of a crime which could only be committed by a French subject. The law was, as he had said, one from which the subjects of France could not appeal, and no person of common sense could have imagined, if he had not been a lawyer, that the case of Baron de Bode could be brought under our treaty with France. The English Government could never have stipulated to protect the property of French citizens, nor could they have maintained a right to compensation from the French Government for the loss of the property of French subjects. No part of the property of the Baron de Bode could be said, in the words of the treaty, to have been "unduly confiscated." It was confiscated on the authority of the Government of the country of which the owner was a subject, and the treaty, the conventions, and the Act of Parliament all proceeded upon the principle that the property for which the French Government was to give us compensation should be British property, held by persons who wore at the time of the forfeiture subjects of the British Crown, and that the property so taken should be considered as unduly or illegally taken by the French Government. He was anxious to meet the merits, honesty, and truth of the case. The truth lay in this—what was meant in the treaty by the words "subjects of His Britannie Majesty?" He contended with great submission, but with as much confidence as his hon. and learned Friend had assumed, that those words meant persons who at the time of the forfeiture were de facto subjects of England, and were recognized in that character. It was impossible that a boy could be regarded as a British subject who, although born in England, was carried back by his parents, who were French, to France, who was brought up as a Frenchman, who held the status of a Frenchman, who was intended to be a Frenchman, and who never owed, or intended to owe at any future time, any allegiance to the British Crown. When a person in the position of Baron de Bode, never meaning to be a British subject, availed himself of an accidental title to call himself in England a British subject, and preferred a claim in that capacity, he did one of two things—he either imposed upon the French Government by assuming a denomination to which he was not entitled, or he tried wrongfully to appropriate to himself a share in monies dedicated for the benefit of British subjects by putting on for the purpose the character of a British subject which he did not hold at the time of the forfeiture, and which but for a pecuniary object lie never for a moment would have dreamt of assuming. What was the conduct of father and son when driven from France by the Revolutionary Government? They first joined the ranks of the Austrian army as French Royalists, and the son, who was never able to speak a word of English, subsequently transferred himself to the Russian service, in which he was employed at the time of the treaty. Until the money was obtained from the Government he never, even in thought, contemplated connecting himself in any way with England, or placing himself in the position of a British subject. Again, was it possible that the property could have been held by anybody who was not a French subject? The owner of that property must have acted an important part in the political affairs of France, and could not have so acted except as a French subject. If the House came to the conclusion that these persons were French subjects, that the property was French property, that the position of the Baron and his son was one in which they owed allegiance de facto to the French Government, and violated that allegiance by joining the ranks of the Austrian army—then the claim must fall to the ground, for then the property had not been "unduly confiscated."

But what was the House now asked to do? It was a mere mockery to say that there was any need for further investigation. There had been investigations for more than forty years, and not a single fact remained to be ascertained. He had hitherto rested his arguments on facts collected by the zealous friends of the Baron. But there was another point to be considered. When money of this kind was stipulated for by one Government and paid by another the only title to the money was by the act of the party requiring the payment. Now the conditions of these claims were defined by the Act of 1819, by which alone the right to participate in this fund could be determined, and they knew that upon this ground the Baron de Bode had not the particle of a claim. Lord Lyndhurst said that under the treaty he could have no title to appear in a court of justice as a claimant, and they would be placed in a difficult position if they recognized a title which would not hold in a court of justice. They could not take a single step for admitting the claim unless they were prepared to repeal the Act of 1819; and could they repeal that Act for the benefit of this claimant alone? By doing so they would be opening the door to every description of claim, however extraordinary and unascertainable, being regulated by no principle of law. So that the Baron de Bode would be just as far as ever from attaining the object of his desire, for he would have to contend with a vast number of other claimants rising up on every side, and it would be utterly impossible to lay down any rule by which the relative merits of those different new claimants should hereafter be determined. They would be establishing a precedent of a most mischievous character if, having established a rule in 1819 and adhered to it for forty-two years, they were now to abrogate that rule altogether, and retrace their steps in the distribution of this property. It might probably be supposed by many hon. Gentlemen, as indeed it was by himself till he read these voluminous papers, that the French Government had recognized the claims of the Baron de Bode, and handed over a sum of money especially on account of those claims. The argument used had been to this effect:—The Baron de Bode was one of the admitted claimants—a certain sum of money was handed over to the British Government—all the other claimants had been satisfied; of necessity, therefore, what remained belonged to him. The Baron do Bode made that allegation in his petition of right. But the representation was negatived by the jury, and found to be contrary to truth and to fact. They found that the French Government never did recognize the claim at all, and never paid over any money specifically on account of this claim. He believed there was scarcely a Gentleman who had been disposed to regard the Baron de Bode's claims with favour who would not find that his disposition to do so was founded on the belief or the suspicion that a sum of money had been handed over to the British Government to answer those claims, and that the British Government had repudiated those claims, and put the money into their own pockets. There had accordingly been unblushing imputations of conduct contrary to good faith, and inconsistent with the honour of the country. He did not wish to use unkind expressions with reference to the Baron de Bode, but lie must say the only thing inconsistent with good faith and honour was his putting on for the purpose of this claim the status and garment of a British subject, which he never intended to assume, never dreamt of claiming or vindicating for himself until a pecuniary interest arose. The lion, and learned Gentleman had referred to the advocacy by Lord Lyndhurst of these claims. That venerable Lord was not more distinguished by his learning than by his benevolence; but to the course which he had taken in the matter when out of I office must be opposed the course that he had taken upon it when Lord Chancellor. In 1828, when the law officers of the Crown resisted that claim so strenuously, they must have acted under the authority of that noble Lord. It was resisted again in 1835 under the same authority, as also in 1843, when the petition of right was traversed, and those pleas put in to which it was not necessary further to allude. It was stated that a new fact was discovered in 1847 through a letter of M. Guizot, stating that the Due de Richelieu had received the claim on the part of the petitioner. Why, then, was not that fact mentioned in the proceedings before the House of Lords in 1852, five years after the alleged discovery? It was known that after the Treaty of 1815, and, finally, when the allied armies were evacuating Franco, the French Government gave an additional sum of money to meet all such claims, and handed over to the British Government the right and duty of investigating them, as well as of laying clown the rules for determining their validity. That led to the Act of Parliament of 1819, and, consequently, whether the French Government received that particular claim or not henceforth became wholly immaterial. The hon. and learned Gentleman had, with a good deal of confidence, asserted that it had been established by judicial decision that that treaty was intended to apply to persons in the position of the Baron de Bode and his son at the time it was concluded. He maintained, on the contrary, that the Privy Council had on that point repeatedly recognized principles in entire conformity with those which he was himself now stating. In one case the learned Lords declared that the treaty between France and England meant to provide an indemnity to all British subjects for losses occasioned by the immediate acts of the French Government; that, although formally and literally by the law of Great Britain the party was a British subject, yet the question was whether he was a British subject within the meaning of the treaty; that he might be a British and also a French subject; and that if he was a French subject, then no act done towards him by the Government of France could be held illegal within the intent of the treaty, and that neither the law of nations nor any treaty bound that Government to deal with its own subjects otherwise than as it thought fit. Therefore when it was said that the Baron de Bode was a British subject that was only half the truth. The question was whether he had not the character of a French subject supperadded to his character as an English subject? Then in which of those characters was his property confiscated? Undoubtedly, in that of a French subject? The decision of the the jury and the Court of Queen's Bench was that the claimant, even upon his own showing, had adduced no proof that his property was unduly confiscated. He would not trouble the House with any further remarks. He had met the case as if it had been unaffected by any judicial decision, unprejudiced by any lapse of time, and as if it had been submitted to their deliberation that night for the first time; arid, on the grounds which he had stated, he must oppose the hon. and learned Gentleman's Motion.

MR. DENMAN

said, that, as no other hon. Member appeared to be desirous of addressing the House on that subject, he wished to observe that all the arguments which the Attorney General had just urged had been anticipated and demolished in his opening speech. The subject was one of all others which demanded deliberate inquiry by a proper tribunal, and he did not ask the House now to decide the case. He desired merely that a deliberate tribunal, which would hear all the arguments on one side and the other, should be appointed to investigate the case. He hoped that those hon. Gentlemen who had not heard the arguments he addressed to the House would abstain from voting, and that they would not be led away by the arguments of the Attorney General, which he confidently believed he could completely answer by merely repeating what he had already said that night, when the House was not so full as now.

MR. MALINS

said, he had with pleasure listened attentively to the three hours' speech of his hon. and learned Friend, and he commiserated his position in having addressed his arguments to some thirty Members, while the decision would rest with 150. He should have risen earlier, but was physically exhausted through having gone without his dinner till ten o'clock. The hon. and learned Attorney General had very dexterously taken advantage of the change of audience, and argued that Baron de Bode was not a British subject; but in a Report of a most distinguished Committee of the House of Lords, of which Lord Lyndhurst, the late Lord Truro, and Lord Brougham were members, it was declared that the son Clement (who was the original claimant) was a British subject within the meaning of the treaty and Convention, and was entitled in that character to claim compensation for the confiscation of his property. It was not fair that the House, which had not heard the argument, should ride off on the proposition of the Attorney General that the Baron was not a British subject. All that was asked for was an inquiry before a Select Committee, in order to ascertain whether his claim was just or nut. The Government had received the money, and ought to have paid it over long ago; and he was sure that, if a just claim were shown to exist, the nation would not wish that injustice should be done, simply because the amount was large, and it might be inconvenient to the Chancellor of the Exchequer to meet it.

VISCOUNT PALMERSTON

Remembering the privations which the hon. and learned Member has endured, and the impatience shown by the House, I shall not detain it beyond a very minutes. I cannot at all concur in the view which the hon. and learned Member has taken. He rests himself entirely on the fact that a Committee of the other House has given an opinion in favour of this claim; but, as Members of the House of Commons, we are not bound by an opinion of the other House. It is said that very few Members have heard the arguments of my hon. Colleague (Mr. Denman), and that the decision is to be taken on the statement of my hon. and learned Friend the Attorney-General; but the speech of my hon. Colleague, and the reply of the Attorney-General are elements upon which the House can come to a decision. The simple question is whether the Baron de Bode is a British subject or not; and nothing can be clearer than the argument and conclusion of the Attorney General, that it is a mere quibble—if I must use the word—to represent him as being a British subject. His father was not British, his family was not British, the property was not British. He did not reside in England, he was established in France as a Frenchman, he emigrated as a Frenchman, he took arms with the Austrian army as a Frenchman, and it was as a French subject that the penalties of confiscation were imposed on him for quitting his native country and breaking his allegiance to the French Government of the time. It is not the case of a man belonging to a British family with a British name, whose parents were born in England, but who were for the moment domiciled in France. In the cases of such persons which have been cited their property was confiscated, not because they were considered French subjects in rebellion, but because they were alien enemies belonging to a country which was at war with France. That was not the case with Baron de Bode. With all deference to the hon. and learned Member there does not appear to me to be a shadow of a ground on which you can represent Baron de Bode as a British subject, or justify his claim to this immense sum of money. It is a very plausible thing to say, "Let us have a Committee of Inquiry," but there seems to me nothing for a Committee to inquire into. This House, in the arguments which have been addressed to it, has abundant elements to enable it to come to a decision. No one can say that any ground has been shown for taking a step which can have no meaning, unless it be a foundation for an application to this House for a largo sum of money for compensating a Frenchman for the confiscation of French property by the act of the French Government, on French grounds alone. Then, look at what has been stated showing the fraud by which this transaction was originally tainted. The father, who was not an Englishman, made over his property to his son, then a minor, for the mere purpose of evading the confiscation which he saw was likely to come upon him. The House knew the whole question upon which they had to decide, and must foresee the consequences which might result from affirming the Motion.

SIR GEORGE BOWYER

said, that he would not detain the House more than a few-minutes while he replied to the arguments adduced by the noble Lord in opposition to the claim. The case really lay in a nutshell, and the opposition to the claim rested on three grounds—1st., that the Baron de Bode was not a natural born British subject within the meaning of the treaty; 2nd., that the confiscation was not within the meaning of the treaty; and 3rd., that the property was fraudulently made over by the father to the son for the purpose of making a claim as a British subject. As to the question of nationality, the late Sir Samuel Romilly, the great ornament of the party opposite, said— I think it is clear that the Baron de Bode is a natural-born subject of Great Britain, and entitled to the same rights and privileges as any other natural-born subject, and that he has not, and cannot by any act which he can do, throw off his allegiance to the King of Great Britain, because nemo potest exuere patriam. The condition and rights of the Baron de Bode are exactly the same as those of a natural-born subject, the son of an English father and mother. He disputed the authority of the Attorney General if he denied that a natural-born subject of a country was, according to international law, the subject of that country all the world over. There was no distinction between nationality according to municipal and international law, and if the Boron de Bode was a British subject according to the law of England he was a British subject within the meaning of the treaty. As to the confiscation, Lord Lynd-hurst had said, "Most of the instances in which compensation had been awarded are cases in which the confiscation has been solely on account of emigration." He was sorry that the noble Lord had used the word "fraudulently," because it appeared to throw a slur on the personal honour of a gentleman who was entitled to every respect. The Court of Chancery dealt rather severely with cases in which fraud was charged and not proved, and he asked the House to consider the case favourably, because fraud had been charged and was certainly not proved. As to the conveyance, the son had a vested estate in the lifetime of his father, and the conveyance of the father, whether good or not, could make no difference. The noble Lord had said that they need not follow the decision of a Committee of the House of Lords. That was a topic which was sure to elicit a cheer from those hon. Members who liked to have a fling at the House of Lords. But the House was bound to give the greatest weight to the decision of a Committee of the House of Lords, composed of those who held high judicial offices, on a question of law like this; and such a Committee had pronounced in favour of the Baron de Bode. Under such circumstances he was sure the House would not allow the weight of the Government to tell against truth and justice.

THE CHANCELLOR OF THE EXCHEQUER

said, he only rose for the purpose of pointing out the double inconvenience in which they were involved. It was unfortunate, after the Mover of the Motion had replied to the only speech that had been made in opposition to it, that hon. Gentlemen friendly to the Motion should, contrary to usage, address the House. It was contrary to usage in the second place, that a Member—as the hon. Member for Dundalk had clone—should come down to answer a speech which he had not heard, and, at a late hour, after having been, no doubt, more agreeably engaged elsewhere, make a solemn appeal in the name of justice. The hon. and learned Member said that the Baron de Bode was a British subject. Now that was never denied. The Baron was a British subject for certain purposes, but he was not a British subject as between England and France, and the whole question turned upon the latter point. That view was supported by the judgment of the Privy Council in the case of Drummond, when it was stated that he might be a subject both of Britain and France, and that if he were the latter, no act done towards him by the Government of France could be deemed illegal within the meaning of the treaty. He was informed on good authority that the Baron de Bode was not entitled to a reversion of the estate, and that the sole representative of the property in it was his father. The Privy Council, presided over by Lord Stowell, had heard the claims of the Baron de Bode, and decided against it. Lord Stowell, in giving judgment, said, that after full consideration it appeared that the complaint had completely failed in regard to the ownership of the property, that it had been a contrivance originating in the mind of the father to elude the French Government, which had proved ineffectual, and that, therefore, although it might be hard for the unfortunate nobleman, the Lords were bound to confirm the award of the Commissioners. His hon. and learned Friend had brought down upon the House the authority of Lord Lyndhurst and Lord Brougham. But the authority of such men as Lord Lyndhurst and Lord Brougham was greater in their capacity as the responsible Ministers of the Government than as private individuals; and for the last thirty years the law officers of the Crown had to a man refused to entertain the claim now before the House. They were asked to appoint a Committee. It would be cruel to the gentleman himself to appoint a Committee, to keep alive a claim of that description, and cause him to transmit to his children that which he had unfortunately received from his father as an inheritance, the prosecution of a claim of the kind. He wanted, moreover, to know how the Report of a Select Committee could justify an Executive Government in acting against the opinion of all the law advisers of the Crown for the last thirty years? Again, if a committee reported in favour of his claim, it would lead to infinite complications, and would be tantamount to an invitation to all the world who had similar claims to have them retried. On these grounds he trusted that the House would not assent to the Motion.

MR. BAILLIE COCHRANE

said, he wished to ask the Chancellor of the Exchequer whether it was true that he held in his hands the balance of a sum of money paid by the French Indemity Fund, which was applicable to the satisfaction of the claim of the Baron de Bode?

THE CHANCELLOR OF THE EXCHEQUER

said, it was not true.

Question put,

The House divided:—Ayes 134; Noes 112: Majority 22.

House adjourned at One o'clock.