§ LORD LYNDHURST
rose to call the attention of the House to the case of the Baron de Bode, and to submit the following Motion:—That this House, after considering the Petition of the Baron de Bode, and hearing a discussion thereon, having unanimously referred 'the allegations of the said Petition to a Select Committee,' and the Committee having reported it as their opinion that 'the following facts had been fully established—namely, that the claimant was a British subject within the meaning of the treaty and conventions; that he was the bonâ fide possessor of a valuable property in Alsace; that the property was unduly confiscated by the French revolutionary authorities; that the late Baron presented his claim for compensation within the time limited by the convention; that after the payment of all other claims presented within the time limited there remained a surplus more than sufficient to satisfy the Barrel's claim; that the rejection of this claim originated principally in a mistake of the Commissioners, which caused them prematurely to close the inquiry upon a ground altogether invalid, whereby they excluded the full proof of the claimant's case, the subsequent production of which proof at the inquisition and on the trial at bar led to the successive verdicts delivered in the claimant's favour; and, further, that the Committee considered the Petitioner's case to be one of great hardship and injustice;' earnestly recommends the Petitioner's claim to the favourable consideration of Her Majesty's Government.The noble and learned Lord said that some communication had taken place between himself and his noble Friend opposite (the Earl of Aberdeen) on the part of Her Majesty's Government, which he had hoped might have relieved him from the necessity of addressing their Lordships again on this subject; but, unfortunately, the result had not confirmed his expectations, and therefore he was obliged to trouble the House with as brief a statement as the facts of the case would warrant. He would endeavour to confine what he had to state within the smallest possible compass, and would therefore proceed at once in medias res. It had been his lot to have some experience in courts of justice and of the profession of the law; but he might venture to say that he had never seen a plain case so involved, and—if he might so express himself—so mystified by the dexterity of gentlemen of the long robe as this of the Baron de Bode. It would be his 1051 task to attempt to 'unravel the Gordian knot and set the case before their Lordships in a plain form—that was to say, in a form corresponding with the convention or treaty out of which it had arisen. The case was nothing more than this: The French Government agreed to pay a large sum of money to the Government of this country, to be applied in compensation of losses sustained by the subjects of His Britannic Majesty, in consequence of the confiscation of their property during the French Revolution. The complainant's case, he ventured to say, came completely within the terms of the convention. It was not his intention to trouble their Lordships with the law of the case. His application was founded solely on facts, which were so clear that it was impossible to entertain a doubt on the question. When he stated the case to their Lordships last Session, he confined himself strictly to a narrative of the facts stated in the petition of the Baron de Bode. Nothing in that statement was exaggerated, and yet it made such an impression on their Lordships' minds that they consented to refer the Baron's petition to a Committee for the purpose of ascertaining whether the facts alleged were true. It was, he recollected, then stated by a noble Earl—a distinguished Member of that assembly, who had held the office of Colonial Secretary for many years, and who was not very likely to take anything for granted—that if the facts stated in the petition should be verified by the reference to the Committee, it was a case in which their Lordships were bound to see justice done to the complainant. How was the Committee composed? It was composed of Members of the House as intelligent as any to be found among a body distinguished for their ability. In addition to what he might call the lay Members, the Committee had the valuable assistance of his noble and learned Friend, distinguished for his constant attention to the judicial business of the House, as well as for his labours in the cause of law reform (Lord Brougham), and also of his noble and learned Friend on the cross-benches, who presided in the House when the case came officially before their Lordships, and was cognisant of all the particulars. Such being the composition of the Committee, he thought he might undertake to say that it was impossible to find a body of men better qualified to come to a correct decision on the subject. It was unnecessary to say that the Members of 1052 the Committee were assiduous and unremitting in prosecuting the inquiry referred to them. Every portion of the evidence was scanned and sifted, and the Committee at last came to a unanimous Report, which had been for a long period upon the table, and he sincerely hoped most of their Lordships had read it. It was not his intention to go through this Report in detail, but merely to direct attention to the concluding paragraph, which, indeed, formed part of the notice of Motion he had placed upon the paper. The Committee reported that—The folowing facts had been fully established, namely, that the claimant was a British subject within the meaning of the treaty and conventions; that he was the bonâ fide possessor of a valuable property in Alsace; that the property was unduly confiscated by the French revolutionary authorities; that the late Baron presented his claim for compensation within the time limited by the convention; that after the payment of all other claims presented within the time limited, there remained a surplus more than sufficient to satisfy the Baron's claim; that the rejection of this claim originated principally in a mistake of the Commissioners, which caused them prematurely to close the inquiry upon a ground altogether invalid, whereby they excluded the full proof of the claimant's case, the subsequent production of which proof at the inquisition and on the trial at the bar led to the successive verdicts delivered in the claimant's favour; and further, that the Committee considered the petitioner's case to be one of great hardship and injustice.That was the opinion expressed by the Committee to whom their Lordships had referred the complainant's petition, for the sole purpose of ascertaining how far its allegations could be established by evidence. They found that it had been established, and he now called on their Lordships as an act of justice to pronounce in his favour. Was the inquiry to have no result? For what purpose, then, was it instituted? His noble Friend at the head of the Government was present when he made the Motion last Session, and did not object to it; and, therefore, it was only reasonable to assume that he was of opinion that, if the facts stated in the petition could be established, the petitioner would be entitled to redress. It was impossible to suppose that any noble Lord on that occasion could have communed with himself after this fashion:—"Let us take the chance of seeing whether the facts can be established; if they cannot there is an end of the case, and if they can we shall be just in the situation we stand in at present, and can oppose further proceedings." It was impossible to believe that 1053 his noble Friend at the head of the Government, or his noble and learned Friend on the woolsack, would condescend to such a course as that. However that might be, it was evident that their Lordships would stultify themselves if they should adopt it. The case was strong enough in the first instance to make a great impression upon the minds of their Lordships; and when they consented to refer it to a Committee, they bound themselves to abide by the result. It was his intention now to refer to the correspondence which had passed between himself and his noble Friend at the head of the Government. In his first letter to his noble Friend, he merely referred to the Report of the Committee, and asked what course the Government intended to pursue. His noble Friend returned an answer, stating that the Government did not intend to adopt any measures in consequence of that Report. On receiving this answer he wrote again to his noble Friend, calling his attention more particularly to the case, and this letter he would read fur the purpose of introducing his noble Friend's answer to it; because that answer was obviously the whole case on which the Government intended to rely in opposing the present Motion. The letter he addressed to his noble Friend was as follows:—May 26, 1853.My Lord—I have delayed replying to your Lordship's letter respecting the case of the Baron de Lode in consequence of the absence of Lord Truro, who has been suffering for some time under severe indisposition. Yom Lordship is aware that he presided as Chancellor upon the appeal to the House of Lords. He is strongly impressed with the justice of the claim, and has taken a deep interest in the question. Your Lordship appears to doubt whether the facts stated by the Committee have been sufficiently established. It is true they were not followed by any judicial decision in favour of the claimant, not from any failure of evidence as to those facts, but in consequence of the Act of Parliament to which you allude, and which operated, however unjustly, as a bar to the claim. The facts were put in issue upon two different occasions, once under the commission, and afterwards upon the trial at bar. Upon the latter occasion they were established, after a trial of four days, in opposition to the strenuous exertions of the law officers of the Crown, by the verdict of a special jury, and in accordance with the previous finding under the commission. This verdict, if incorrect in any particular, might have been reviewed, but it was acquiesced in, and has never been questioned. The facts found were in substance as follows—namely, that the claimant was a British subject, within the meaning of the Convention; that he was the bonâ,fide possessor of a valuable property in Alsace; that this property was confiscated by the revolutionary Government of France; that 1054 the late Baron presented his claim within the limited time; and that, after payment of all the other claims presented within the proper time a surplus remained more than sufficient to satisfy the Baron's claim. It is upon these facts, so found, that the petitioner relies; they bring his case completely within the terms of the Convention, and give him a right, in common justice, to receive payment out of the fund advanced by the Government of France to satisfy such claims; and I submit to your Lordship that to apply any part of this fund to other purposes, whether by Act of Parliament or otherwise, while this claim remains unsatisfied, is at variance with every principle of justice and of national honour.—I remain, my Lord, very respectfully yours, "LYNDHURST.To the Right Hon. the Earl of Aberdeen.To the reply of his noble Friend he must call their Lordships' attention in detail. It was obviously not the sole production of his noble Friend; but was probably drawn up in conjunction with the law officers of the Crown. It might be described as a triumvirate production, combining law, equity, and diplomacy. The odds, it must be confessed, were against him; but yet, so confident was he of the justice of his cause, that he did not despair of success. The first paragraph of his noble Friend's answer was couched in these terms:—Downing-street, June 14.My Lord—I have duly received your further letter, dated the 4th inst., respecting the case of the Baron de Bode, in which you state that certain facts have been found by two verdicts of a jury which have not been disputed, and establish a claim on the part of the Baron de Bode which, on every principle of justice and national honour, the country is bound to satisfy. The proceedings upon which the first of these verdicts was founded were entirely ex parte, no person attending the inquisition on the part of the Crown, and they cannot therefore be considered as any authoritative finding of the facts relied upon in support of the Baron's claim.His noble Friend had not quite accurately described what he (Lord Lyndhurst) had stated. He had not for a moment meant to say that this proceeding was not ex parte. What he said was, that the finding of the trial at bar was in accordance with the previous finding of the inquisition. The inquisition was under a petition of right. The Lord Chancellor followed the usual course, and directed a Commission to issue to five experienced members of the bar, and twenty-four special jurymen were directed to inquire into the allegations of the petition. The jury found the facts stated in the inquisition, and these facts he had already stated. The law officers of the Crown did not attend this proceeding. Why? They had notice to attend, and they might have attended if they thought proper; but they sent a shorthand 1055 writer to take notes of all the argument; and the evidence, for the purpose of putting themselves completely in possession of the claimant's case, with a view to ulterior proceedings. The next step was a trial a bar, and he must inform their Lordship that in that proceeding the Crown possess ed considerable advantages, inasmuch as they had at command the shorthand writer's notes of the arguments and evidence adduced, and were therefore in possession of the whole of the claimant's case. Their Lordships would perceive how great an advantage that circumstance would be (in such a case. The trial, when the four Judges (the Lord Chief Justice and three (other Judges) presided, with a special jury, lasted four days. The case was fought inch by inch, and argued at considerable length, and the result was, the unanimous finding of a verdict which confirmed the previous finding of the Commission in every particular. The law officer: of the Crown, upon the termination of that trial, must not be assumed to have considered that verdict incontrovertible; but whether they did so or not, it was, of course, their duty not to be satisfied with it. But whatever might have been their opinion, no steps were taken to impugn that verdict, for it was considered that notwithstanding that decision, there were good grounds to rely upon for a judgment adverse to the Baron's claim. The law officers of the Crown did not choose to contest the facts and move for a new trial, but thought it safer to apply themselves to an Act of Parliament, to which he was about to refer, which declared the money to be held as a trust fund by the Government, and placed it in the Treasury, in order that the money should only be applied to discharge the claims of persons in whose favour an adjudication had been made by the Commissioners. The case was carried on those grounds into the Court of Exchequer Chamber, and Mr. Baron Parke delivered a most elaborate judgment, in the course of which he said—If no Act of Parliament had passed for the application of this money, it might have been question whether the British Sovereign could have applied it to any purpose that he chose. It might have been contended, that as it was received by him expressly as the price of a release of the French Government from its obligations to compensate his subjects for their losses, he took the money with a similar obligation to distribute it among his subjects by way of compensation, an that if he had been a private individual who had received money under the like circumstances, such a trust would have been implied, and might 1056 have been enforced in some way, according to the circumstances, either in a court of law or one of equity; and, if so, that such subject had a remedy by a petition of right. But it is unnecessary for us to give any opinion upon this supposed case; for Parliament, which was unquestionably competent to dispose of all the money as it thought fit, and might have applied it to the public services of the year, or given it for any other purpose, and so disappointed the just expectations of the claimants, has provided for the application of the fund by the statute 59th of Geo. III. c. 31; and the case turns entirely on the construction and effect of that statute.But really these funds were taken contrary to the spirit of the treaty and placed at the disposal of the Treasury, instead of being applied in compensation to the individual whose case had been proved to be within the Convention. He need not say that when the case was brought before their Lordships' House, the judgment concurred exactly with that of the Court of Exchequer Chamber, and that it was founded not upon the facts of the case upon both sides, but upon the appropriation of the money by the Act of Parliament to which he had referred. Such was the answer given to the facts of the case. But, after all, it was not a question of law that he brought before their Lordships—it was a question of fact. As far as the law was concerned, he admitted that the claimant had no right to recover in a court of justice, because the Act of Parliament was a bar. It would be observed that the law officers of the Crown did not condescend to state what particular facts they disputed; but in a conversation which he had had casually with a noble Lord, a Member of Her Majesty's Government, it was incidentally dropped that the Baron de Bode might not have been a British subject. This was a point then upon which he must call attention. The claimant had been found to be a British subject both at the trial at bar and by the Committee of their Lordships' House. It was found that the father of Baron de Bode came to this country and resided for a long period in Staffordshire, where he married an English lady who resided on her own estate in that county. The present claimant was born in Staffordshire and christened in Gloucester, and was, therefore, most clearly a subject of this country, entitled to enjoy all the privileges of British citizenship, and unable to throw off its obligations and liabilities. He was competent, if elected, to take his seat in the Commons House, as a representative; to be a Member of their Lordships' House, and of the Privy Council; or indeed to occupy 1057 the seat so ably filled upon the woolsack by his noble and learned Friend, or the high position equally ably filled by the noble Earl opposite (the Earl of Aberdeen). He was to all intents and purposes a British subject, and liable to all the obligations which that position would impose, as he was entitled to all the privileges which it might also confer. If he had entered into the army of a foreign Power, and served against this country, he would most certainly, if taken in arms, be liable to the punishment of high treason, although it was not probable that in such a case that extreme punishment would be inflicted. When first the claim was set up, the Due de Richelieu, who was then at the head of affairs in France, had stated that the claim was inadmissible, for it was impossible that he could be a British subject, inasmuch as his father was a German. Mr. Mackenzie, who was Chief Commissioner, on the representation of Sir Charles Stuart, who was at that time the English Ambassador, placed the name of the Baron de Bode on the list of claimants. Subsequently an accurate statement of his case was drawn up and sent to Sir Samuel Romilly for his opinion. That distinguished authority returned an answer, which had been laid on the table of their Lordships House. Sir Samuel Romilly stated that there was no doubt whatever that the petitioner was a British subject; that he had all the rights of a British subject, and was subject to all the liabilities incident to that character; and that, in fact, he could not put off his allegiance to the British Crown; and he stated that opinion in the most distinct and decisive terms. On this opinion of Sir Samuel Romilly, this ground of opposition was abandoned, and during the whole of the subsequent proceedings it had not been alluded to. A surmise had also been thrown out, that the claimant might have some relations with the French Government, and he would just call their Lordships' attention to what were the real facts of the case, and show that there was not the slightest foundation whatever for such a surmise. The father of the claimant was colonel in a German regiment, in the service of Louis XVI., and by the rules and regulations of that regiment no one but Germans could be admitted into it, and therefore it was manifest that his father could not have been a Frenchman. The property was confiscated a long time before the claimant came of age, and therefore it was impossible that he could have 1058 taken any steps to become a naturalised French subject. He thought that he had said enough to prove that there was no doubt that the Baron de Bode was a British subject, and he did not think that that fact could be by any possibility controverted, and he should therefore assume that he was a British subject. The father and son were entitled to a large and valuable property situated in Lower Alsace. Now, when Alsace was annexed to the Crown of France, there was a proviso that all the property held by German tenure in that district should remain inviolable. The property of the Baron de Bode was a German male fief, or he might call it an estate tail; the estate tail in the remainderman being incapable of being defeated or barred—thus, the present claimant had a vested estate in the remainder. From various causes, with the narration of which he would not occupy their Lordships' time, the father of the present Baron thought fit to make a surrender to his son, and the property was conveyed to him with livery of seisin, and all the form and ceremony required by the law of that country; so that in point of law he became absolute master of the whole interest and property. Even if no surrender had taken place, the claimant had undoubtedly a vested interest in the property. He had read through all the evidence on the subject, and he had not the slightest doubt that the surrender of the estate was a perfectly proper transaction. All the particulars of the title and the names of the witnesses had been before the inquisition, and the law officers of the Crown were conversant with every part of the case, and had not advanced any proof that the surrender was not genuine; and he should therefore take for granted that it was a bonâ fide transaction. When the claimant applied to the Commission, he received a statement of the kind of evidence which it would be necessary for him to adduce, and he accordingly employed himself in collecting it. He was shortly afterwards asked if he could adduce evidence to prove that the property which had been confiscated, being the property of a British subject, had been confiscated as such, and according to the decree which had been made against British subjects. It was replied on his behalf, that the property had been confiscated in consequence of emigration. Upon that the Commissioners decided that it would be useless to go on with the evidence, and that, unless the Baron were prepared to prove that his 1059 estate had been confiscated under the decrees against British subjects, he was not entitled to be included in the Convention. He considered that decision a most extraordinary one. It was opposed to the direct opinion of Sir William Grant and Lord Stowell, both very high authorities on such points. There were cases which might be cited as showing the extraordinary nature of that decision. There was the case of an Irishman, who had settled for many years in France, who had served in the French army, and who, after having so served, thought fit to emigrate. The estates of that person were immediately confiscated by the French Government: he brought his case before the Commissioners, and it ultimately came for decision to the Judicial Committee of the Privy Council, and it was there decided that the individual in question was a British subject, and came within the operation of the law of the Convention. In another case, a person who had settled in France for a considerable number of years had taken the preliminary steps for becoming a naturalised French subject; but before the whole ceremony had been completed, he determined upon emigrating, and the result was the confiscation of his property. He applied to the Commissioners, and it was decided that his case came within the operation of the treaty. He would not weary their Lordships by adducing other instances of a similar character; but the two which he had brought forward would illustrate the extraordinary nature of the decision in the case of the Baron de Bode. By the Convention, all the evidence required was, that the party was an English subject, and that the property to which he was fairly entitled had been confiscated. It was necessary that claims should be sent in to the Commissioners within three months, and the Baron de Bode had sent his in within that period, and his claim had been rejected, and the grounds of rejection were stated on the face of the award. The first ground was that to which he had just referred, and the second, that there was not sufficient proof of the surrender of the property by the father. It was also subsequently urged against his claim that the money had, by Act of Parliament, been placed under the control of the Lords of the Treasury, to be disposed of as they should think fit. That was not, in his opinion, a just answer to the claim, or one to have been confirmed by any tribunal of justice. The noble Earl opposite went 1060 further, for he appeared to think that the claim could be rejected on various other grounds, for in another part of his letter the noble Earl stated—And with regard to the verdict of the jury on the trial at bar, it must not be assumed that the law advisers of the Crown considered that verdict incontrovertible. No steps, indeed, were taken to impugn it, because it was considered that, notwithstanding that verdict, there was abundant ground in law for a judgment against the Baron's claim; and such judgment was in fact given by the Queen's Bench, affirmed afterwards by the Court of Exchequer Chamber, and, finally, by the House of Lords. Nor must it be assumed that, had it been necessary for the Courts to determine the different points on which the Baron's claim depends, all, or any of them, would have been adjudicated in his favour. On the contrary, it is believed, and may be inferred from the language of the judgments, that many of these points would have been determined against him.How that might be he would not express an opinion. The noble Earl continued—It is stated by Lord Denman, in giving the unanimous judgment of the Court of Queen's Bench, that there was no one of the propositions which might be called the ingredients of the claim that, was not encountered with formidable objections.' On the receipt of the sums of money paid under the conventions with France, certain tribunals were appointed by the Legislature to determine the rights of parties claiming under those conventions. The Baron's case was investigated and determined by those tribunals. Litigation must somewhere end; and there is no more reason for reopening the Baron de Bode's case than for reviewing by an appeal to the country any final judgment of the House of Lords between private parties.But was it investigated? There was ample proof that the case had not been investigated. The Baron was on the Continent collecting evidence as to the value of his property that had been confiscated. While he was so engaged, a letter was written by the Commissioners of award to the Baron's agent in this country, inquiring whether the Baron's property was confiscated because it was British property, and as such? The agent said it was confiscated in consequence of emigration, and the Commissioners then decided against his claim. This closed the award, and would the noble Earl call this an investigation by a competent tribunal? The Baron's next proceeding was by a petition of right, and that was decided, not upon the merits of the case, but upon the Act of Parliament. When the case was brought before the other House, a noble Lord, whom he did not now see in his place, who was then a Member of the other House, ex- 1061 pressed a strong feeling of the justice of the Baron's claim; and his right hon. Friend Sir James Graham, who took part in the discussion, concluded by saying that it was a case of great hardship. He was not endeavouring to treat this as a case of law, because he was fully aware that any attempt to enforce the claim in a court of justice would be at once answered by the production of the Act of Parliament to which he had already alluded. Nothing more was necessary in a case of this kind than he state the facts, and to call upon their Lord ships to do justice. Upon a former occasion it had been asked by more than one noble Lord what had become of this money? and it was asserted that all the money been distributed according to the terms the Convention. Now, he had such confidence in the love of justice of his noble and learned Friend (the Lord Chancellor) that if he could satisfy him the money had not been appropriated according to the terms of the Convention, he was sure he should have the support of his noble and learned Friend. The jury found that a balance of 482,000l. remained after satisfying the claims which had been decided by the Commissioners to come strictly within the terms of the Convention. That sum, with its accumulations, amounted to 566,000l., and that sum had been paid by the Commissioners into the Treasury. In consequence of this large surplus, a large number of applications were made for compensation by parties who had not put forward their claims within the time first specified for so doing, and a sum of 196,000l. was ultimately awarded to this class of claimants; but these claimants certainly ought not to have been compensated at the expense of those who were strictly within the terms of the Convention. A large balance was, therefore, still available; but out of this amount a sum of not less than 232,000l. was applied by the Government in discharge of debts due by the public on various transactions connected with the cost of maintenance of the French prisoners in this country, and other matters. Including interest, a sum of 68,000l. remained, even after this application of the funds, of which no account whatever could be obtained; and all that could be said of it was, that it was not applicable to the discharge of these claims. Under such circumstances, was it not strict duty, on the part of the country, to pay out of the public funds a sufficient sum to reimburse this gentleman, whose money had been applied for the purpose of re- 1062 lieving the Government from certain liabilities to which they were exposed? He was sorry to find that the claim had not been met in anything like a fair and liberal spirit by successive Governments. The law advisers of the Crown had actually condescended to use such pleas as the Statute of Limitations, and that the money had not been paid over to this country in the reign of Her present Majesty. To set up this statute as a bar to inquiry, was what no honest or honourable man would do. He knew it had been said that corporations possessed no soul nor conscience, and he believed this was true with respect to Governments, for he had seen, sometimes, instances of very conscientious persons who had paid their tribute to the Chancellor of the Exchequer, but he did not remember any instance of reciprocity on the part of that functionary. The footsteps were all one way—Nulla vestigia retrorsum. He had had long experience of public life, but he thought he could venture to say that he never knew an instance of money having been paid into the Treasury which could ever be got out again. The Genius of the day, represented by the First Lord or the Chancellor of the Exchequer, stood at the entrance, stern, inflexible, and obdurate—Quàm si dura silex aut stet Marpesia cautes—and forbade the passage across the threshold of the Treasury. What, he would ask, would be the reply which he could make to the question of some foreign jurist, why they had not paid this claimant? It would be, "We are so poor, so wretched, and we have so little money, that we have appropriated this amount to our own use for the discharge of our debts." Such would be the answer which he would be obliged to make, though he confessed he should give it with shame, and a feeling of deep humiliation. He was aware that he was entirely at the mercy of the noble Earl at the head of the Government, and possessed no power to compel him to do justice. He could, however, remind the noble Earl, even if he displayed no symptom of justice, that—No sympathy that to great ones 'longs, Not the King's crown, nor the deputed sword, The Marshal's truncheon, nor the Judge's robe, Becomes them with one half so good a grace As mercy does.He entreated the noble Earl and the Government, for the sake of the high reputation, the character, and position of their Lordships, to listen with favour to the ap- 1063 peal now made. The noble and learned Lord then concluded by his Motion.
The LORD CHANCELLOR
said, he should certainly feel surprised if, in spite of the able address of the noble and learned Lord, a very short statement of facts would not convince their Lordships that there was no injustice whatever in resisting this claim of the Baron de Bode; that it was founded in error, and that there was not only no legal claim, but no equitable claim, for the satisfaction of these demands. Unlike the noble and learned Lord who had just addressed the House, he should assume that their Lordships were not fully familiar with the facts of this case. The Baron de Bode was the son of a foreign nobleman who was of German origin, but who purchased property in Alsace, and there was established. The father married, it was true, in the year 1775, an English lady. It could not be argued, however, that the circumstance of his wife being an English woman made any difference in the status of his children from what it would have been had he married a French or a German woman. His children did not thereby become English subjects at all. He (the Lord Chancellor) did not mean to controvert the position that the Baron de Bode, who was the original claimant, was a British subject. Why was he a British subject? From the accident that he—not the rest of the family—happened to be born while his parents were on a visit to his mother's relatives in England, and every one born in England is by right a British-born subject. The Baron de Bode was certainly, therefore, in point of law, a British-born subject. But, though born in Staffordshire, he went abroad immediately afterwards with his family, resided abroad, and to all intents and purposes was practically a foreigner, as an evidence of which he could not speak a word of English. Though legally a British subject, then, he was for all practical purposes a foreigner. The claimant was born in the year 1777. Between the year 1775 and the period of the French Revolution, his father purchased a large property at Soultz, in Alsace. When the Revolution broke out, what was allege was this—that the father, thinking it might serve his purpose so to do, made a cesssion of his property to his son. Whether that was a valid transaction or not, was open to doubt. It had been found by a jury that it was; but it had previously been found by a competent tribunal that 1064 it was an invalid and a fraudulent transaction. The father contended that the property having been thus ceded in the year 1791, became the property of his son, at that time fourteen years of age. Previously to 793 the Revolution had broken out, and the ether, son, and the rest of the family took the Royalist side of the question, and emigrated, and the property was confiscated as the property of an emigrant—distinctly confiscated, because the French contended that it was the property of the father, and did not recognise its cession to the son as a valid transaction. The then Baron served, he believed, in the Russian army, and died in 1796, when his son, the original claimant, succeeded to the title. At the peace in 1815 the treaties were entered into between the Governments of England and France which gave rise to his discussion, in which treaties the French Government contracted to compensate all British subjects for the loss of their property induement confisqués during the Revolution. A treaty had been previously—that is, in the year 1786—made with reference to the property of British subjects resident in France, whereby it was provided that, in case of war, a year's notice should be given to those persons to quit and withdraw their property. The Revolution, however, took place, and the treaty of 1786 was entirely disregarded. There could not be the least doubt in the world that it was to such cases as these that the Convention really pointed, though he did not mean to dispute that when the Convention came to be looked at afterwards its terms were found to go further. The first course taken under that Convention was the appointment of a joint commission, which went on for two or three years, the French Government depositing money, and providing for claims until 1818, when that Government was exceedingly anxious to bring the subject to a termination as far as they were concerned. The amount of claims then put forward had been pretty clearly ascertained, and a convention was entered into to this effect: The French Government said, "We will hand over to you a rente producing 3,000,000f." (about 120,000l. a year); "you shall settle the claims among yourselves, and we shall be relieved from all further liability on the subject." That was embodied in the form of a Convention, and made the subject of an Act of Parliament, that provided for the appointment of Commissioners to investigate the claims 1065 sent in, which claims, if the funds, handed over by the French Government were sufficient, were to be discharged in full; if the money was insufficient, it was to be divided pro ratâ; and in case of a surplus, that was to be at the disposal of His Majesty. According to the terms of the original Convention and of the Act of Parliament, the claims were to be sent in before a certain day, and if they were not so sent in they were excluded. Claims to a very large amount were sent in accordingly; they were investigated; the matter was protracted for two or three years, and eventually a final award was made by the Commissioners. Among the claims on which they adjudicated—he did not say whether rightly or wrongly—was that of the Baron de Bode. Perhaps the Commissioners took an erroneous view of the law of that case; perhaps they took a wrong view of the fact. They were, however, the parties who constituted the lawful tribunal for the investigation of the merits of these claims, and they came to this conclusion:—The Board find, that there is no sufficient proof that such public manifestation, according to the laws then in use in Soultz, was to be considered as a cession to the said claimant (he then being only fourteen years of age), or that the same did in any valid or sufficient manner transfer from the said Baron de Bode, the father, a foreign-born subject, all right which he then possessed in the said property to the said Baron de Bode, the son, now claiming, to be a British subject. The Board further find, that there is no proof that such cession was admitted and recognised by the French authorities as valid and legal; but, on the contrary thereof, the Board find, from the different statements of the said claimant, and more particularly from his declaration and covenant, that it was the said Baron, the father, and not the son, who was seized, possessed, and otherwise entitled to the said estates; and that shortly after such cession, or intended cession, the said estates were seized under the pretence that the Baron de Bode, the father, was a subject of France, and had emigrated from that country, although (as is elsewhere stated) he was a German.That was the decision of the competent tribunal upon the Baron's case in the year 1822. The Act of Parliament, seeing that the awards of this tribunal would or might give rise to very nice and difficult questions, did not leave the claimants dependent on the decisions of these Commissioners, but gave them a right of appeal to time Privy Council. Lord Stowell and Sir William Grant were the persons who then took a leading part in the deliberations of the Privy Council, and in 1823 the Baron de Bode appealed to that body, who came to this conclusion:— 1066That this was an appeal brought by an unfortunate nobleman from an award made by the Commissioners for Liquidating British Claims, and that, after the best attention the Lords had been able to give the case, it appeared that the claimant had completely failed in regard to the ownership of the property; that it had been a contrivance originating in the mind of the father, and by no means an improper one, to delude the French Government, and which proved ineffectual and, therefore, under all circumstances, though hard it might be for the unfortunate nobleman, yet the Lords were bound to affirm the award.Now, he did not know where these cases where to stop if after the lapse of thirty years after the question had been decided in the first instance by these Commissioners, and then upon appeal to the Privy Council by such eminent men as those whom he had mentioned, the subject of this claim was now to be revived, and an 'attempt was to be made to show that a wrong decision had been come to. Did their Lordships suppose that the Baron de Bode was the only person whose case could be revived? An infinite number of claims had been rejected, and if the Baron de Bode had now claim for justice, all the others must be treated in a similar manner. It turned out that the sum which had been provided by the French Government for the liquidation of these claims was considerably more than sufficient to pay those reported upon by the Commissioners, and there was a surplus of 400,000l. or 500,000l. The Government then took into consideration what would be the fairest and most equitable mode of disposing of this surplus. A Treasury Minute, dated the 2nd of May, 1826, was issued to this effect:—From this paper it appears that, after all the claims which have been received and admitted by the Commissioners, as well as after the disposal of all the claims now in course of adjudication before the Lords of the Privy Council shall have been liquidated and fully discharged, even in case the whole of the sums claimed should be allowed, a considerable surplus will remain undisposed of, and which is placed at the disposal of his Board by the Act of the 59th of Geo. III., c. 31, for enabling the Commissioners to carry into effect the several conventions for liquidating the claims of British subjects and others against the Government of France. My Lords advert to the statements in these papers that the time limited by the conventions signed in Paris in November, 1815, for receiving claims was in many cases too short to allow persons, and particularly those residing in distant parts, to receive the notice and to transmit their claims within the period limited by the convention for their reception, in consequence of which, when the subject of these conventions and claims was subsequently under discussion in the House of Commons, an expectation as held out by a statement of Lord Castlereagh 1067 that the cases of those individuals who had not referred their claims within due time would be taken into consideration in the event of there being any surplus of this fund after liquidating the claims of those persons who had preferred them within the time limited by the conventions. It now appears that such surplus will arise, although the precise amount cannot at present be ascertained; my Lords are therefore pleased to direct a letter to be written to the said Commissioners, desiring them immediately to receive all the claims which have heretofore been tendered to them, and which were not then received, or, if received, not investigated, in consequence of their having been preferred after the time limited by the convention for their reception, and that they will forthwith proceed to investigate those claims upon the same principle in all respects as they have investigated the claims preferred within due time; and further desire that, after they have ascertained the correct amount of the principal of such claims, they will compute the simple interest due thereon at the rate of 3 per cent from the time of the sequestration to the 24th of June next; and my Lords desire to observe that they cannot direct payment to be made to any of the parties preferring these claims until the total amount of all such claims shall be ascertained. Acquaint them further, that it is not their Lordships' intention that any claims which have been already received awl decided upon should be reconsidered; nor is it their intention to waive any other irregularity than that of the claims not having been preferred within the time limited by the Convention.Under this Minute the Commissioners did proceed to investigate the claims of all persons who had tendered claims to them, or whose claims had not been before investigated, because they had not been made in due time. Those who established their claims were paid, and by this means the surplus of 460,000l. was reduced to something like 200,000l.—at any rate the sum was very much reduced, but there was still a large surplus. He found by a Treasury Minute of June 8, 1830, that the Commissioners received applications for the unappropriated surplus at the disposal of the Government from the Bordeaux and the general claimants. The Bordeaux claims had gone beyond the full amount specially appropriated to their settlement, and, therefore, when there was a surplus from the fund he had alluded to, these claimants said, naturally enough, that they had an equitable claim upon that surplus. This was noted in the Treasury Minute, which ran thus, and to which he begged their Lordships attention:—My Lords have before them letters addressed to the Duke of Wellington and to this Board, by several agents for certain claimants on the Government of France, under the Convention with that country of the 20th November, 1815 (No. 13), urging the claims which they have to receive out of the unappropriated surplus of the funds provi- 1068 ded by Convention No. 7, of the 20th November, 1815, and a supplemental Convention of the 25th of April, 1818, the unsatisfied balance of their admitted claims under Convention No. 13. My Lords also read various applications from other parties, who consider themselves to have claims upon that surplus upon different grounds; and among others a letter addrsesed to their Assistant Secretary by the Secretary to the East India Company, advancing a claim to a sum of 1,009,312l. on account of expenses incurred by them during the war in the maintenance of French prisoners of war. From the time which has elapsed since the surplus of the funds was transferred to my Lords, my Lords consider that they have now before them every case in which any claim can, even in the opinion of the parties interested, be urged to favourable consideration. On considering the documents before them, with the exception of the claim of the East India Company, the decision of which rests in some degree on separate grounds, it appears to my Lords that the claimants may be divided into four distinct classes, comprising—
- "1. Those whose claims have been regularly presented in the time limited by the 12th article of the Convention No. 7, and have been disallowed by the Commissioners. To these may be added those whose demands, either for principal or an increased rate of interest, have been only partially allowed, and who seek a further payment.
- "2. Those whose claims not having been presented within the time limited by such Convention, have been subsequently admitted to adjudication under a Minute of this Board, and have been, on adjudication, either only partially allowed or disallowed altogether.
- "3. Those whose claims not having been advanced within the period fixed by the Convention No. 7, nor tendered previously to the date of my Lords' Minute of the 21st of May, 1826, have been excluded from consideration. To these may be added those whose claims under Convention No. 13, were not advanced within the period limited by that Convention.
- "4. Those (the Bordeaux claimants) whose claims have been admitted under Convention No. 13, or under the additional article to Convention No. 7, but who, in consequence of a deficiency of the funds allotted under that convention and additional article, have received only a percentage of their admitted claims.With respect to the first class of these claimants, my Lords are of opinion that, as their claims have been regularly adjudicated in the manner prescribed by the Convention and the subsequent Act of Parliament, 59 Geo. III., c. 31, there is no ground whatever for the reconsideration that has been prayed. With respect to the second class, as their admission to participate in the advantages of the Convention was an Act of pure bounty on the part of His Majesty, they cannot, strictly speaking, have any right to au appeal from the decision of the tribunal to which His Majesty thought fit to assign the task of distributing his bounty. But as, in admitting those parties to share in the benefits of the Convention, it was my Lords' intention to admit the satisfaction of those claims as far as they were found to be just, without any objection as to the time of their presentation, my Lords do not see any inconvenience likely to result from giving to such of them as may wish to prefer an appeal to the Privy Council against the decision of the Commissioners in their 1069 respective cases a power to prefer that appeal, provided that such appeal be lodged within a definite period. My Lords will therefore take measures for submitting, to Parliament in this Session a Bill for giving to such of them as may appeal within a definite period the same power of appeal which was granted by the 10th section of the Act 59 George III., c. 31, to the first class of claimants referred to in this Minute. With respect to the third class of claimants—namely, those whose claims have not been brought forward either within the time limited by the conventions or tendered previous to the date of my Lords' Minutes of the 2nd of May, 1826, it does not appear to my Lords that they can now be admitted to consideration.The Minute next referred to the last of these claims, as follows:—The fourth class of claimants stand in a different situation from those already enumerated; their claims have been regularly preferred within the period prescribed; they have been adjudged to have been well founded, but a deficiency of the funds allotted to their satisfaction has prevented their receiving more than a certain percentage on the sums pronounced to be respectively due to them. My Lords, therefore, consider that these parties have a claim to favourable consideration, and, should a surplus ultimately remain, my Lords do not think that it can be more properly appropriated than in some further compensation of this class of claimants, to the extent of half of the sum now remaining due to them under the adjudication of the Commissioners. Adverting, however, to the necessity of retaining an adequate fund to satisfy certain appeals now pending, or which may hereafter he brought before the Privy Council, and which, if decided in favour of the appellants, may greatly reduce, if not altogether absorb, the amount of surplus at His Majesty's disposal, my Lords do not feel that they can take measures for compensating these claimants until the period which Parliament may fix for the admission of appeals shall arrive, when the number of appellants and the whole amount of their several claims will be definitively ascertained.So matters went on, and, there being still a surplus left, another Treasury Minute was made on the 6th of December, 1832, in which it was stated:—It appears to my Lords that the first step will be to nominate Commissioners for the purpose of receiving and adjudicating upon the several claims, under whose directions the fund in question shall be distributed; that the claims shall be presented to those Commissioners within a period to be hereafter fixed, and advertised in the London Gazette for the purpose, and shall be supported by such evidence as the Commissioners may think necessary to substantiate the claim; that the decision of the Commissioners shall be final and conclusive, the admission of the claims being altogether a matter of grace and favour; and that no claim shall he entertained until the party claiming, or his authorised agent, shall have signed such document as may be considered necessary to mark his acquiescence.Another Minute followed soon after, appointing the Commissioners, and on the 1070 15th of March, 1833, a Minute was issued giving certain directions for the guidance of the Commissioners, which the Treasury laid down as follows:—My Lords proceed to consider what description of claims are inadmissible, and what description it will be proper to submit to the adjudication of the Commissioners. In the first place, my Lords cannot admit that any claim shall be now entertained, which, having been heard before the late Commissioners of French Claims and rejected, had a right of appeal under the Statute to the Privy Council, of which they did not avail themselves, and still less that any claim should be entertained, the disallowance of which by that Commission, was affirmed upon appeal to the Privy Council.Substantially, those whose claims had not yet been adjudicated upon on account of some mere technicality, as well as those who could show that lapse of time and delay in preferring their claims had not arisen from circumstances over which they had any control, were let in. They then stated:—If it shall be found, after deciding upon the claims under Class 1, and after paying the balances ordered by the Minute of the 8th of June, 1830, to the claimants under Class 2, that a surplus remains, that surplus will be applicable to the liquidation of such of the remaining claims now to be admitted, and of the balances still due to claimants under Class 2 in full, if the surplus be sufficient for the purpose, or pro rabâ, according to the amount of their several claims, my Lords considering that to be the fairest and most equitable manner of proceeding in this liquidation, under all the circumstances of the case.As far as these directions went, the claims were adjudicated upon and paid. It was not quite correct to say the surplus had been all paid away, for there were a few thousands remaining which hail not beers paid, because questions of identity of parties had arisen; but in effect the whole fund had been disposed of in the mode sanctioned by the Act of Parliament, and the surplus, going to the Crown, had been disposed of by the Crown in the mode which appeared to it most equitable. There might be differences of opinion with respect to the best course to be taken on the occasion; but it seemed a most extraordinary proceeding, when every attempt had been made to terminate the matter fairly and justly, and when the principle had been acted on of letting in all whose claims had not been adjudicated upon, to call in question the propriety of that plan which had been actually adopted. The Baron de Bode, however, feeling convinced injustice had been done to him as a British subject, de- 1071 manded restitution of his property induement confisqué, and petitioned the House of Commons to interfere in his behalf, alleging he had a claim on the surplus not disposed of under the original Act. The House of Commons refused to entertain that view, but they intimated to him, that if he had a legal claim on the surplus fund he might take any legal proceeding he thought fit to assert it. In 1837 or 1838 the Baron de Bode was advised to institute a petition of right, which was a very unusual proceeding in modern times, the nature of which he might sufficiently explain to thir Lordships by stating it was a lawsuit against the King, brought with the consent of the Crown. What the Baron de Bode had to establish was partly matter of fact, partly matter of law—first, he had to show that the property was his; next, that the cession had been valid in 1791; that it was within the meaning of the statute, and that he had a legal right to participate in the surplus of this fund. The proceedings went on, till at last there was a trial at bar before the Queen's Bench; and the noble and learned Lord certainly had the benefit of this fact, that a Westminster jury in 1844 found, in opposition to the finding of Lord Stowell and Sir William Grant twenty-two years previously, that the cession was valid and good. The Baron de Bode, however, had not proved that he had any claim of right in the fund, assuming the whole of his facts to be made out. It was quite unimportant that this point was decided in his favour, for he had no right to have any claim in the fund except through the bounty of the Crown, which had a right to appropriate it as it pleased. But the proposition of his noble and learned Friend was, that, whatever might be the law, this finding of the jury in 1844 ought to have led the. Government to act on what the jury thought the just claim of the Baron de Bode, independent of the legal right. Now when his noble and learned Friend said that this finding was enough to show his abstract right, without any reference to his legal right, he must remind his noble and learned Friend that he was Lord Chancellor while all this took place. How came it, then, that he slept over this case while he was Lord Chancellor? How was it he had not moved—
§ LORD LYNDHURST
said, the case had never been before him as Chancellor, nor was he then aware of it.
The LORD CHANCELLOR
Well, 1072 that so far might account for it. The surplus had been appropriated, though not as the Baron de Bode thought it should have been; and the question was, whether his case was one which called for their Lordships' intervention, and in which the country would go along with them in doing something which had never been done before—in interfering for a person in the situation of this gentleman. It was said he was a British subject, and so he certainly was; but he was a British subject by the merest accident. If he bad been born of a Frenchwoman while over on a visit to a friend in this country, he would have been just as much a British subject as he was now. Would he be such a person as their Lordships would think it right to interfere with the bounty of the Crown for? He could not but think the Baron de Bode stood in a position on this ground which disentitled him to all consideration in such a proceeding as this. He quite admitted the argument founded on the fact that the jury found the cession was valid; but he must say that, speaking beyond the case, he doubted very much the competency of any jury, in 1844, to decide whether a transaction which had a great appearance of fraud in 1791 was fraudulent or not; though he admitted, as Lord Stowell said, that the Baron de Bode might not have considered the cession was an act of fraud at all. He must say, when he looked to this Motion, that he believed it was one for which there was no precedent, and that it was one which he trusted their Lordships would never set up. It indicated, on the very face of it, the most entire distrust in the decisions of the tribunals of this country, and—his noble and learned Friend must permit him to say—the most entire ignorance on his own part with respect to the course he (Lord Lyndhurst) wished their Lordships to take. He wished their Lordships "to recommend the case of the Baron de Bode to the favourable consideration of the Government." That was the sort of language which their Lordships were in the habit of seeing appended to thing which their Lordships ought to do. If the Baron de Bode had justice on his side—if the Crown had no right to appropriate the fund to other claimants—if the Baron de Bode had in justice a claim on the fund—he (the Lord Chancellor) would not listen to any demand for "a favourable consideration" of his claims—there was but one thing they should do—they should immediately by Act of Parliament raise 1,500,000l. 1073 sterling—charging it on the Consolidated Fund—to liquidate his claim. There was no fund in existence out of which the demand could be paid, and therefore they must, if the Baron de Bode was right, pass an Act for it. He did not know the meaning of the words "favourable consideration of Government." The matter had often before been recommended to the consideration of the Government for the time being; most Governments had had it under their consideration; and every Government had felt it was a claim not founded in justice, and that it would only be listened to on the condition of listening not only to every disappointed suitor standing in the same predicament, but to the claims of every disappointed suitor for the last fifty years. Their Lordships had now pending in their Lordships' House a question involving the right to property worth 60,000l, or 70,000l. a year. They would be bound to decide that; and if the principle of his noble and learned Friend was to be tolerated, what was to prevent the disappointed parties in that case coming forward some thirty years afterwards and saying that the law had been misunderstood by their Lordships on that occasion—that he had been deprived of a very large property in consequence, and calling on their Lordships to take his case into their favourable consideration. Six or seven years ago their Lordships decided a case against Lord Dungannon, which deprived him of 13,000l. a year. There had been very great doubts ever since resting on the minds of many learned lawyers that that decision was wrong—though he (the Lord Chancellor) believed it was right; but suppose thirty years afterwards their Lordships were to be asked to reopen that case, there was no reason why an appeal should not be made to reconsider their decision if their Lordships reopened the case of Baron de Bode. The truth was, that all tribunals were liable to err, both as to matters of law and of fact; and the principle never could be admitted, that after everything had been done, and the adjudication concluded, upon the suggestion of a dissenting party that justice had not been done, the State was to make good to that party what he had lost in consequence of the error to which all human tribunals were subject. Those were the observations he had to make upon this case, and he would sit down with repeating the sound maxim of law which he thought exceedingly apposite to the subject now under the consideration of their Lordships—Interest reipublic ut sit finis litium.
* However confident I may feel in the justice of the case which I am about to press upon your Lordships' attention, the appearance of the House must preclude any sanguine expectation of the success of the Motion of my noble and learned Friend; and I regret to perceive that the injustice and persecution which this unfortunate gentleman has suffered, has excited so little sympathy and attention, that the decision upon this, in all probability, his last appeal for redress, is left in the hands of the Government. Although there is not a single noble Lord now occupying the Treasury bench to whom individually I should not be content to leave the case, with a confident hope that the just claims of the Baron de Bode would receive his award, yet from those noble Lords united as a Government, I cannot entertain the same expectation.
But however much I may regret the failure of the Motion, I rejoice that it has been made; as at least one desirable result will be attained, that of satisfying the public, after the extraordinary misrepresentations and suppressions which have ever attended the discussion of the Baron's claims, the public will at last be satisfied of the reality of the wrong which he has suffered, and of the justice of his claim; and notwithstanding what has been said by my noble and learned Friend on the woolsack, I will venture to affirm that if this appeal be rejected, it will be a disgrace to the country. This case has been brought nine times under the consideration of the House of Commons, and upon every one of those occasions the application failed of success from the most extraordinary statements and contradictions from some member or other of the Government of the time being. Upon one of these occasions a Committee had been granted to investigate the case, when the Government allowed certain individuals, who had no claim whatever within the terms of the Convention—but who hoped to obtain payment of some demands against the French Government out of the surplus which would remain of the funds received by the British Government under the Convention No. 7, if the late Baron's claims should be successfully resisted—to oppose the Baron before the Committee; and after evidence had been brought from various quarters at a great expense, the objections raised by those persons rendered it necessary to send to Germany and other places for documents. This occupied so much time that the House was prorogued 1075 before a final report could be made. The Committee, however, reported in August, 1834, that they had made great progress in the inquiry, that very little remained to be done, and that they expected that their report would be completed early in the next Session, if, as they fully anticipated, the House would see fit to reappoint the Committee.
Shortly after the prorogation a change of Ministry took place. Parliament was dissolved, and the Member by whose efforts the Committee had been obtained, lost his seat. Considerable difficulty arose in inducing any other Gentleman to take up the case, which appeared to be surrounded with so many difficulties, and upon the justice of which so much doubt had been thrown. When, however, an hon. Member had been induced to move that the Committee should be revived, it was opposed by four Memhers—two of them Gentlemen who advocated the claims of those other persons to whom I referred (and who could by no possibility have any pretence of right) their sole ground of opposition being the hardship upon those persons of the delay which would arise from prosecuting the investigation of the Baron's case.
Upon the merits the Motion was opposed as usual by two of the Members of the Government—the then Solicitor General (Lord Cranworth), my noble and learned Friend who is now on the woolsack, and my noble Friend upon the bench (Lord Monteagle) upon my left hand, the then Chancellor of the Exchequer; and as I should not occupy your Lordships' time usefully in recapitulating the several different, and not always consistent statements, made by the Government from time to time, when the case was under discussion, I shall content myself with presenting a fair sample of those statements, by calling your Lordships' attention to what was said by my two noble Friends upon this last occasion; I shall do so with pain, because I am sure that I shall excite considerable regret and uneasiness in my noble and learned Friend on the woolsack, than whom I do not believe there lives a more honourable and just man. But, acting upon representations and instructions which he then received, he was induced to make allegations more unfounded and less consistent with the real facts, than ever counsel at the Bar had ever the misfortune to make against the adverse party. The case now comes before your Lordships, however, under happier circumstances than 1076 any which have hitherto attended the appeals for justice.
The facts are now upon record. They can no longer be denied or evaded; and when I bring forward those statements made by the two noble Lords to whom I lave referred, the one now Lord Chancellor (Lord Cranworth), but then Solicitor General, and the other the then Chancellor if the Exchequer (Lord Monteagle), I now pledge myself in their hearing, that they will not attempt to repeat or defend any one of those statements, by which they induced the House of Commons to refuse to revive the Committee which the former House had felt it its duty to grant.
I cannot repress the expression of my surprise at the intimation of the intention of the Government to resist altogether the present application—a course which I think s not consistent with the respect due to the honour and character of the House.
My noble and learned Friend (Lord Lyndhurst) brought forward the case, which was not new, but had floated upon the minds of the Members of both Houses for some years; and, in a House consisting of a more than ordinary number of Members, he made his most able and powerful; statement; and, although one or two noble Lords, influenced by the repeated unsuccessful appeals which had been made to the House of Commons, expressed a doubt whether statements showing the case to be one of such glaring injustice could be correct and expressed an intention of saying, 'Not Content,' yet after further discussion the Committee was granted nem. con. My noble Friend brought forward the Motion with the avowed object of asking the House to interfere to obtain redress, if, in the result, the facts should be substantiated; and many of the noble Lords were then present, and forbore to express any dissent to the Motion; and I now ask what did the House authorise to be understood by granting a Committee? Surely the House did not mean to occupy the attention of the noble Lords who formed that Committee in a laborious investigation for their amusement only—that however satisfactorily the facts might be established, no result was to follow from a Report to that effect. Is it consistent with the character of the House—now that the Committee have unanimously reported the case to be established n every point—that such Report is to be treated as amounting to nothing, and as giving no claim whatever to any further consideration of the subject. Surely, my 1077 Lords, this is most unseemly, this mockery of granting a Committee to ascertain facts which when established are to be of no avail, to induce this individual to incur considerable expense in attending that Committee, and bringing his witnesses and documents to prove the allegations of his petition, and then to tell him that the granting of the Committee was an idle, fruitless ceremony, successful only in occasioning expense and trouble, and in exciting hopes which it was never intended should be gratified. I trust the noble Lords on the Treasury bench, with regard to the consistency and credit of the House, will abandon their intended opposition to the Motion; especially after I shall have adverted to the facts of the case now so incontrovertibly established. I say incontrovertibly established, because, whilst never was a case brought forward under circumstances of so great difficulty in regard to the production of evidence, never was case so thoroughly investigated, or so undeniably proved. Notice was given of the claim under the Chancery Commission. It was afterwards proved by vivá[...] voce evidence, to the satisfaction of a special jury, before four learned Commissioners nominated by the Lord Chancellor, who returned a verdict affirmative of every allegation. Notice had been given to the Crown by the statements contained in the Petition of Right of the facts intended to be relied upon.
The execution of the inquisition furnished the detail of the proof in support of those allegations, names and residence of the witnesses, dates and places of every occurrence. The Government possessed a shorthand writer's note of all that detail. The law officers afterwards thought right to put in issue every allegation which had been so proved; and again, before a special jury this unfortunate gentleman had to incur the enormous expense of producing his evidence upon the trial at Bar before the four Judges of the Queen's Bench and a special jury.
The law officers appeared upon that trial; they cross-examined the witnesses, and urged every possible technical objection; and after an elaborate address upon the evidence by the Attorney General, and a summing up by the Lord Chief Justice, the verdict of the special jury was again in favour of the Baron, reaffirming every fact proved before the former jury. Surprise, therefore, as to the evidence, there could not be. Witnesses who had been brought from abroad on the part of the Crown were 1078 in court and heard the evidence, and the counsel of the Crown were challenged to call them, but the verdict passed without this being done.
No application was afterwards made for new trial, nor was any objection whatever made to the verdict.
Now, a Committee of this House sat—a tribunal open to receive explanations of every sort. If any circumstance had been supposed to exist, tending to impeach the justice of the claim, or which furnished any reason why this House should not interfere, such explanation might have been laid before the Committee, either by noble Lords if this House, or by any other person; and an opportunity would have been afforded to the Baron to meet any statement that might be made. But this gentleman has been treated in this extraordinary manner, that no one ever appears before any tribunal to impeach any of the grounds upon which his claim rests when he can be heard in answer; but, upon every occasion when the subject is brought under consideration, and he cannot be heard in answer, opportunity is then taken to insinuate causes of doubt and suspicion as to the truth and reality of his case, accompanied by contradictions, which there are no means at the time of repelling; but the same contradictions are rarely repeated twice. The case is now here, when I defy contradiction or denial. I regret that the leaven deposited in my noble and learned Friend's mind in his official character of Solicitor General, should still continue to operate, though in a very different manner. In the speech he has delivered to-night, he has repeated no one statement by which he induced the House of Commons to refuse to revise the Committee, no one denial which he then uttered. I beg your Lordships' attention to what he then said; and I ask him, which of those statements he will now assert to be correct? He made statements, as to facts, the direct contrary to reality, and insinuated charges of fraud founded upon those statements, without a shadow of ground. He not only impeached the reality of the claim, but imputed a want of integrity and good faith in the conduct of it before the Commissioners. I am sorry that the course he has taken to-night, of inviting your Lordships to refuse the Motion upon the ground that it has been so often heard and adversely decided, renders it necessary that I should show what has caused some of those decisions—namely, misrepresentations the most glaring. He has now admitted, what had 1079 been before denied, that the Baron was a British subject in a certain sense, having been accidentally born in England. What my noble and learned Friend meant by the Baron's being a British subject in a certain sense, I do not know. He was a British subject in the same sense of every one of your Lordships who was accidentally born in England. His father and mother were married in England, and, for aught that appears by the evidence, remained in England from that time to the birth of the Baron. He was a British subject entitled to every right, bound to every duty which could attach to the most perfect. British subject in the kingdom.
By the French treaty and convention, indemnity was to be given for the spoliations committed by the revolutionary Government upon British subjects, unaccompanied by any words of qualification or exclusion; and, as according to every write upon the subject, the duty of a Government to protect necessarily follows, and attaches to the duty of allegiance and obedience by the subject, I ask, under the general reference in the treaty and convention to British subjects, upon what pretence of reason or justice can the Crown and Government of England refuse protection to an individual upon whom allegiance, duty, and obedience to that Government have attached in every sense? In regard to national character, he is qualified to sit in either House of Parliament, to be a Privy Councillor, and to fill every office in the State. The "certain sense," therefore, in which he is a British subject, as stated by my noble and learned Friend, is in every sense in which a man can be a British subject. But, my Lords, mark by whom, and under what circumstances, and for what purpose, my noble and learned Friend stated this gentleman was a British subject "in a certain sense," meaning, I suppose, that that "certain sense" was one which did not entitle him to compensation under the treaty.
Upon the presentation of his claim, in the first instance, to the Duke de Richelieu, doubts were expressed as to his national character. The subject was investigated—the opinion of Sir S. Romilly was obtained to the effect that the Baron was a British subject to every intent and purpose, and the objection was withdrawn, and the claim now under consideration was handed over by the French Government to the joint Commissioners appointed to investigate the British claims. Claims for com- 1080 pensation had been presented by persons claiming to be British subjects in respect of confiscation of property in France, and also in respect of property confiscated out of France. The Baron was a claimant in both respects. After the abandonment of the objection to his national character, his claim in respect of confiscation of property in France was handed over by the French Government to the joint Commissioners appointed to investigate British claims. There was also handed over the list of claimants in respect of property confiscated out of France, which included the Baron. It was signed by the British and countersigned by the French Commissioners. It recognised his British nationality, and that he had presented his claim within the time limited by the treaty. A list with the claim of the Baron now under your Lordships' consideration, together with a list of the claimants for the confiscation of property out of France contained in that list, whose national character was disputed, and in which disputed list the Baron's name was not included, were both signed by the French as well as the British Commissioners before the British Government accepted a certain sum to satisfy the claimants under the Convention No. 7, and discharged the French Government from its liability under the treaty and convention. Under these circumstances, upon what just pretence, I ask, when the Baron required payment, could the British Government raise objections in regard to national character? Surely this attempt at evasion was most unfounded and dishonourable in relation to the French Government as well as most unjust towards the Baron.
My noble and learned Friend further stated an objection to the claim, that the Baron had in the first instance presented his claim as arising out of the peculiar character of the property confiscated as a German fief inalienable, and in which, therefore, the Baron, as heir-at-law of his father, had an interest which entitled him to compensation;—but that the claim was unfounded, inasmuch as the French Government had abolished all feudal rights in regard to that property, and therefore when it was confiscated it was the sole property of the late Baron's father, to dispose of as he might think fit. And my noble and learned Friend then stated that the Baron "feeling the irresistible force of this objection, then shifted his ground, and said that his father had made a secret cession of the estate to him," and then "that in 1081 this country we should be inclined to apply a harsher name to such a proceeding." Reviving this statement in my noble and learned Friend's memory, I would ask him upon what authority he was induced to make these statements, and, upon the faith of them, successfully urge the House of Commons to refuse to reappoint this Committee? I would ask him, had he read the claim? had he inspected a single document? had he read the award? or the confirmation of it by the Privy Council?
It is plain he had not: because the original claim, dated 18th February, 1816, gave no colour whatever for this unfounded imputation of a fraudulent shifting of a ground of the claim. But first, in regard to the feudal rights. When Alsace was ceded to France, in 1648, the Treaty of Munster, by which the cession was made, contained an express stipulation that the province ceded should be held by France subject to the feudal rights of the German nobility in Alsace, and particularly to the continuance of the feudal connexion with the German empire, and France expressly renounced all right to disturb these arrangements. Things so remained until the French revolution.
The abolition of those rights, after ineffectual remonstrance, was one of those aggressive breaches of treaty which gave rise to the war between the German empire and France, and was actually stated as one of the grounds of that war, and constituted, therefore, one of the grounds for compensation.
As to the alleged "shifting" of the ground of claim, from a claim as heir-at-law in relation to a German fief to a claim under a secret cession by his father, I will state the facts as they occurred, and I call upon my noble and learned Friend on the woolsack to correct my statement, if he is prepared to state that it is in any respect inaccurate. Should he venture to do so, I will refer to the indisputable proof of everything I shall urge.
The Baron's original claim was a claim as owner of the property confiscated, not containing a syllable about his father, nor anything from which there occurred the slightest variation during the prosecution of the claim. As soon as the Commissioners called for further details as to the nature of his claim and the proof of his title, the claim was stated to be founded upon a cession made to him by his father. This, I again state, was the ground of claim from the first step until the award of 1082 rejection. The ground was never shifted, either because an objection was made upon the abrogation of the feudal rights in Alsace, or for any other reason. Surely my noble and learned Friend cannot help feeling that he owes some compensation to the Baron, for having induced the House of Commons to act upon a statement so unfounded, and so calculated to prejudice the minds of English Gentlemen; but, not content with imputing this 'shifting' in the ground of claim, merely as a fact, although he did not charge that this shifting was fraudulently done, he yet, in a delicate manner, took great care that it should be so understood, and followed his statement by the remark that, "in this country we should be inclined to apply a harsher name to such a proceeding."
But the mis-statements do not end here. My noble and learned Friend said, that the claim, when shifted, was put upon the ground of a secret cession by his father.
Yes, I am reading from Hansard, but I heard the speech myself. It was made in answer to me, and it caused me no slight pain, that I had not the opportunity of replying to it, by stating, not only that there was no foundation whatever, for imputing to the Baron that he ever alleged the cession to be secret, by virtue of which he claims, but that the very contrary is the direct truth. The force of his claim consisted in its being an open and notorious cession—upon an occasion, public for the very purpose of witnessing it.
The municipal authorities and inhabitants, to the number of four hundred, were assembled, and the father read a document, stating the cession to the son.
Such is the evidence actually proved before the jury. The object of the cession was to avoid, if possible, the spoliation of the property as belonging to the father. Notoriety was evidently essential to the accomplishment of the purpose. Therefore, there was no ground for this unfounded statement, that the Baron had claimed under a cession alleged to be secret. There could be no object in making such a statement, except to create a prejudice against the claim, by the imputation of a fraud.
Further, my noble and learned Friend 1083 stated, that the property was seized as belonging to the father, the evidence being that the description of the owner of the property, as inserted in the list of emigrant whose property was to be seized as confiscated, was "De Bode of Soultz" only with no particular application to either father or son. This also, I presume, was suggested to confirm the idea of the cession being secret, or never having had existence at all; and my noble and learned Friend remarked, that the Baron's father made no objection to the proceeding, on the ground of the alleged cession to the son. The father, because of his being an aristocrat, had been denounced, and would no doubt have been guillotined, if he had not escaped to the Austrian army; and it is urged, as evidence that the allegation of a cession having been made was not true or that the cession was not bonâ fide, because the father did not put his head under the guillotine, by appearing before the revolutionary authorities, and protesting against the seizure, as consequent upon his own emigration, upon the ground that the property belonged to his son—that son having also emigrated. Of what value, as a protection to the property, would have been such a protest, while it would have been death to the individual protesting? Such were the grounds upon which my noble and learned Friend, in his character of Solicitor General, induced the House of Commons in effect to revolve the former vote upon the appointment of the Committee which had been granted after successive debates, although unsuccessfully opposed by the Solicitor General of that day (Sir Charles Pepys), but who was not prepared with those fatal mis-statement which my noble and learned Friend on the woolsack was most unwarily, though innocently, made the instrument of propagating.
He further stated that, upon the hearing of the petition to the Privy Council for a rehearing, the Council, upon consideration, determined that there was no ground for acceding to its prayer. He caused it to be understood that Lord Stowell and Sir William Grant were of that Council; the fact being that neither of those distinguished persons had any thing to do with that petition for rehearing; and the only decision was not, as stated, that there was no ground for acceding to the prayer, but that the Privy Council had no jurisdiction to rehear the appeal. Is it not, I ask, more extraor- 1084 dinary that such a series of mis-statements should have been fabricated, than that they should have had the effect of misleading the House of Commons into an impression that the claim was not only unfounded but fraudulent. Coming from the Solicitor General, all doubt of the correctness of the statements was excluded. I have said that all the previous applications to the House of Commons, with the exception of that when the Committee was granted, had been resisted, not by the identically same mis-statements, for they could not be urged upon more than one occasion without being met by a contradiction, but by unfounded allegations of a similar description, having the same effect and producing the same result.
The Attorney General of one day (Sir Charles Wetherell), was instructed to state that there was no ground for the Baron's assuming to be a British subject. At another time, that the claim had not been registered in due time, although no registration was necessary, and the case was known to have been heard, and an award made in relation to it as a registered claim.
Thus time after time, were the applications to the House of Commons repelled, and then it is said that these repeated unsuccessful appeals to the justice of the House of Commons ought to be deemed decisive evidence against any just foundation for the claim.
The ground relied upon by the then Chancellor of the Exchequer, my noble and learned Friend on the bench on my left (Lord Monteagle), was, the great voluntary delay on the part of the Baron in presenting his claim to the House; it being perfectly well known that the Baron de Bode had, from first to last, most indefatigably importuned the Members of the House of Commons to bring forward his claim, and has struggled against the delay to the utmost of his power.
I shall now call your Lordships' attention to the futile grounds upon which the present Motion has been opposed by my noble and learned Friend (the Lord Chancellor). The case now stands before your Lordships too well established to admit of any statements in contradiction of the recorded facts. The House, after hearing the details of the case, and every stage of the proceedings, from my noble and learned Friend who made the Motion, granted the Committee. The award, the confirmation of it by the Privy Council, the petition for 1085 rehearing, the Motion for mandamus, the trial at bar, the Motion to arrest the judgment, the writ of error to the Exchequer Chamber, and, finally, the writ of error to this House, were all distinctly stated; most of the noble Lords now present being in attendance when the Motion was made, including my noble Friend upon my left, and my noble and learned Friend upon the woolsack. Not a syllable was then said that those circumstances furnished a reason for refusing further investigation, or that the granting of the Committee would be useless; as, although all the facts stated should be proved to the satisfaction of the Committee, they would furnish no ground for the interference of the House in favour of the Baron. Yet, after the labours of the Committee, some of whom were among the most intelligent Members of the House, and after an unanimous Report as to the facts, and a recommendation of the case to your Lordships' consideration, my noble and learned Friend has no better reason for opposing the application that your Lordships should act upon the recommendation of the Committee, than that the case has been so repeatedly heard and decided. For although the noble and learned Lord addressed the House at some length, the first part of his speech consisted only of an admission that the Baron must be considered in some sense a British subject; but the greater part of his speech consisted of a laborious detail of the manner in which the Lords of the Treasury had disposed of the surplus of 500,000l. that remained, after satisfying all the claims awarded to be within the treaty; the question being not how or upon what worthy motives the Lords of the Treasury had disposed of the surplus, but the right and propriety of their disposing of it in any manner, while the Baron was seeking a further investigation of his case. True, my noble and learned Friend did mention the award and the various decisions, and the noble Lords cheered those decisions. ["Hear, hear!" from the Treasury bench.]
The noble Lords renew their cheers. What is it they cheer? Is it the patient hearing and full opportunity of proving his case allowed to him by the Commissioners of Liquidation, or the justice of refusing him the opportunity of producing his evidence in proof of the cession, upon the admitted illegal ground that it would be useless to allow an opportunity to prove the cession, unless he would also undertake to prove a fact which they knew 1086 did not, and the Baron never pretended did, exist, that is, that the revolutionary Government seized the property as belonging to a British subject, by virtue of the decrees against British subjects, and afterwards in making their award against the Baron upon the ground that he had not satisfactorily proved that cession which they had denied him the opportunity of proving? or the other well-advised ground, that he had not proved the property to be seized as they required? or the great intelligence and fitness for their duties manifested by the Commissioners of Liquidation by construing biens caducs to mean property abandoned by the Baron, which in truth meant property which had escheated to him and his predecessors, the Lords of the fief? or perhaps the noble Lords will say, they cheered the sense of justice manifested by their having thought it right to warn the Baron that the certain rejection upon appeal of his claim would be occasioned by any attempt to produce that evidence before the Privy Council upon the appeal in support of the cession, which they had denied him the opportunity of offering to them? or perhaps it was the ingenuity and dexterity which were manifested throughout the proceedings in defeating the claim upon technical objections, always beside the merits of the case? or the no less ingenuity exerted in the various unfounded statements by which the House of Commons had been so often misled and induced to refuse redress? But whatever may have elicited those cheers, it certainly was not any statements which had the slightest tendency to show that justice had been done.
The main point of my noble and learned Friend's opposition is, that the case ought to be considered after what has passed, as res judicata; that the Commissioners of Liquidation were the authority appointed by law to decide the claim; and that any step by the House which would operate as a reversal of their decision would form a most dangerous precedent, and furnish grounds for appeals without end from all the tribunals of justice in the country.
I pray your Lordships to attend to a few words upon the merits of the position urged by my noble and learned Friend. What is the tribunal to which he refers? Was it one of the ordinary tribunals of the country, consisting of Judges, whose competency to the duties they were appointed to discharge, had been manifested in any pre- 1087 vious situation? Had the tribunals any settled law or rules by which their decision were to be governed? Was there any form of proceeding which secured the parties a public and fair hearing? Was it a tribunal that can be compared in any respect with any of those to which my learned Friend has sought to assimilate them? The tribunal consisted of gentlemen appointed by the Government, unknown but in their respective limited circles—bound by no rules or restrictions—sitting in private—and who, unfortunately, have manifested very little skill in regulating proceedings of a judicial nature, and as little in their competency to decide upon the principles applicable to the matters intrusted to them. That they committed manifest errors is quite clear. Their personal respectability and integrity is sufficiently vouched, in my judgment, by the Government having appointed them, notwithstanding their failure in the execution of their duties. It has been demonstrated that the ground upon which they refused to allow the Baron time to produce his evidence was illegal, and that, since their award, the Baron has established by irrefragable evidence, affirmed by the verdict of two special juries, the fact of the cession, the evidence of which they refused him the opportunity to produce. Regard being had to these facts, and to the nature and character of the tribunal, I submit that there is no ground whatever for the argument, that should your Lordships endeavour to redress the injustice inflicted by the award, that your doing so will furnish any precedent for irregular appeals against the decisions of the ordinary courts of the country.
If in a litigation between A. and B. a sum of 1,000l. is awarded by the regularly constituted tribunals to B., which, in truth and justice belongs to A., A. has no claim upon the Government or the country for redress. They have performed their duty by erecting competent tribunals, and they have no interest in the result. Here the Government does not stand indifferent. It is one of the parties, and is seeking to avail itself of the blunders of its own agents to retain money which is clearly proved to belong to the claimant. There is, therefore, not the slightest analogy between this and the ordinary decision of Courts of Law.
My noble and learned Friend adds, that the numerous other dissatisfied claimants may equally appeal. To which I answer, that if there be claimants whose cases are 1088 analogous to the Baron's, in having been refused a proper hearing, I am prepared to say that your Lordship's treatment of the Baron's case ought to be such as to form a just precedent for appeals to your Lordships by those parties. In redressing the injustice inflicted upon this individual, you will only confirm the confidence of the country in your justice, by showing that, wherever else parties may fail in obtaining a fair hearing of their wrongs, in this House they will be sure to obtain it, and be assisted by your Lordships in endeavouring to obtain their rights. But this case does not only affect justice to an individual, but also, in a great degree, the honour of the country. I trust, therefore, that the argument will not be esteemed of any weight by your Lordships.
What, then, my Lords, are the simple facts presented as the ground for acceding to the Motion of my noble and learned Friend?
The Government of this country received a sum of money by virtue of a treaty with France, upon trust to apply it in compensating the British subjects who had suffered spoliation by the revolutionary Government, and who should duly present their claims according to the terms of the treaty. Baron de Bode has established by proof, which has been affirmed by two special juries, that he suffered spoliation under circumstances for which the treaty provided compensation. That after satisfying every other claim established to be within the treaty, there remained a surplus sufficient to satisfy this claim. That as it was represented to Parliament that a surplus might be anticipated, such surplus was placed at the disposition of Government, but it was only the surplus, after satisfying all the claims of the treaty, that was so placed. That when the Commissioners of Liquidation entered upon the investigation of the claim, they gave a notice to the Baron of the facts which would be necessary for him to establish to entitle him to an award. But that notice required evidence of a state of facts which the terms of the treaty did not authorise them to require.
The fact of the alleged cession by his father was properly required to be established. It is evident, not only from the circumstance that the spoliation of property recurred during a most violent revolution, but also from the nature of the tribunal constituted to investigate the claims, that no one expected that the claimants would be enabled to produce either legal or pre- 1089 cise evidence in support of their claims. The treaty distinctly indicates that such was not to be expected. And with respect to the particular case of the Baron de Bode, distinct evidence was given that the revolutionary army conducted themselves in the most violent manner in Soultz, the town where the Baron's mansion was; that the municipal archives, papers, and documents were thrown into the streets, burnt, trodden upon by men and horses, and destroyed in every way which outrage could dictate.
The Baron had, therefore, to procure certificates, copies, and authentications of various kinds, all of which will be found detailed in the Report. The Baron, under these circumstances, prayed the Commissioners of Liquidation for time to produce his evidence in support of the cession; and he laid such grounds before them as induced them to grant the time, provided, however, he would undertake also to prove that the property had been confiscated, as a British property—a fact which did not exist, and which of course could not be proved.
The Baron's agents, therefore, avowed their inability. Whereupon the Commissioners made their award, rejecting the claim, and stating two grounds, and two only, for that rejection. One was, that the Baron had not satisfactorily established the alleged cession. The other, that he had not proved that the property had been seized as British property, by virtue of the decrees against British subjects. He appealed; when the Commissioners of Liquidation gave him notice, as I have stated, that his appeal would certainly be dismissed if he attempted to produce any other evidence than that which had been laid before them. And upon the appeal, the Privy Council being limited to the same evidence which had been before the Commissioners of Liquidation, affirmed the award.
The Baron petitioned for a rehearing. He was told, without any examination into the merits, that the decision of the Privy Council upon the appeal, having received the Royal approval, there was no jurisdiction to grant a rehearing.
The Act of Parliament having put the surplus in the disposition of the Lords of the Treasury, application was made for a mandamus to compel the payment of the claim. That application was refused; not upon the merits, but simply upon the ground that the Lords of the Treasury 1090 held the funds only as servants of the Crown; and that the Crown could not issue a mandamus against itself.
In consequence of this decision, the Baron was advised, that the only remedy open to him was by Petition of Right, which was accordingly presented. Every opposition was offered to the prosecution of that remedy. Upon the taking of the inquisition under a commission issued under that petition, all the facts necessary to show the claim to be within the treaty, were distinctly proved and affirmed by the verdict.
The Crown afterwards, as I have detailed, traversed every fact; and all the facts were again established and affirmed by the verdict, on the trial at Bar. When application was made for judgment upon that verdict, it was not impeached; but it was said that the Act of Parliament had placed the surplus in the absolute disposition, not of the Crown, but of the Lords of the Treasury; and, therefore, no one could claim an interest in the fund, in opposition to the statute. Upon that ground the Crown succeeded in arresting the judgment.
That decision was affirmed upon writs of error by the Exchequer Chamber and this House.
The result therefore is, that having at last in the most strict and legal manner, proved the case, and shown the existence of a surplus fund adequate to satisfy the claim, yet Parliament having been induced to place whatever surplus might remain of the money received from the French Government, after satisfying all claims on which favourable awards had been made, at the disposition of the Lords of the Treasury, the Baron was told that the 500,000l. which proved to be the admitted amount of the surplus, having been so disposed of by Parliament, he could have no claim upon it.
My Lords, this was a sacred trust fund, received for an express particular purpose; and the trust was for the exclusive benefit of a certain class of British subjects who had suffered by the French revolution. The Baron has distinctly proved himself to be one of that class. Why is a second spoliation to be committed upon him, and that by his trustees, those trustees being the Government of England, so constituted by treaty with France? Is not a double fraud committed, the one upon Parliament, the other upon the Baron? The fraud 1091 upon Parliament being by the Government taking advantage of the terms of an Act prepared and procured by itself, purporting to give a power over an anticipated surplus, after satisfying all claims within the treaty; and the Government perverting that Act of Parliament to justify an appropriation of the surplus to purposes not at all within the treaty, to the exclusion of an unsatisfied claimant who has proved a claim most distinctly within the treaty. Is not such perversion a fraud upon the Baron? Surely every right-minded man must perceive that the nation was pledged to the French Government to apply the fund in-trusted to it, to the specific purpose of the treaty, and especially not to divert any portion of that fund to other purposes than those of the treaty, while a claimant within the treaty remained unsatisfied.
My noble and learned Friend's statement of the meritorious purposes to which the diverted fund has been applied, I submit, is idle and irrelevant as an answer to a complaint on the ground that the Government had no right to divert and apply the money to any purposes whatever while the Baron's claim was unsatisfied. But as to certain parts of that fund, it is clear it has been applied to the payment of a demand or debt due from the English Government, and which debt ought to have been paid out of the public purse, and ought not, by an abuse of trust, to have been paid out of the fund 'ear-marked' for the claimants under the treaty.
The English Government had caused the property of persons represented by M. Ladébat to be unjustly or improperly seized, and they were bound to restore the property or make compensation; and they did accordingly pay a part of the compensation out of the public purse. The amount of 23,700l. was actually taken out of this trust fund and paid to M. Ladébat. How can the nation, with any decency, retain that sum?
The disposition of the remainder of the fund was in no respect within the terms of the treaty, and many of them hind no relation whatever to the subject of the treaty.
Here is, therefore, a case which, of all others, requires attention to good faith and honour. The British nation, complaining of wrongs committed upon its subjects, receiving a fund, under treaty, in trust, to pay the class of British sufferers who should make their claims within the terms 1092 of the treaty, and, by force of an Act of Parliament, perverting those funds to other purposes, and denying justice to one clearly of the class fur whom the treaty provided compensation.
Parliament is not intentionally a party to this transaction. The Act only dealt with the surplus, upon the understanding that 'surplus' would mean so much of the fund as should remain after satisfying every claim within the treaty. The Government have thought fit to treat this large sum as a surplus, although a just claim remains unsatisfied.
If the country, to redeem its honour and do justice to the Baron, should satisfy his claim, or any part of it, out of the public purse, the evil will have arisen from the mistake of the Government to whom the Parliament had intrusted the administration of the fund.
I do therefore call upon your Lordships to take a just view of this case, and not prefer saving the money of the country, either to the preservation of its honour or of its justice. You have granted a Committee to investigate the case. They were open to hear every objection, legal, moral, or of any other nature which could exist against the claim. No well-founded objection of either character could be stated against it. They have unanimously reported in its favour. Did you mean anything by granting the Committee? or was it a mockery? If anything was meant, it must have meant that, if the case proved to be what the noble Lord who moved the Committee had asserted it to be, it should receive your further consideration. All that was professed has been established, and I therefore earnestly claim of you to redeem your pledge, and, with it, the credit of the nation. The case can furnish no precedent which can be injurious, as it will only establish that a claim upon the nation, clearly founded in justice, will always in the result find redress. I know the difficulties in which the Government are placed in consequence of the largeness of the sum demanded; but I earnestly trust that you will not allow Parliament to be disgraced—that you will not suffer the country to be subjected to this injustice—by rejecting the claim; and I believe, if you take a just course on this question, you will be supported by the general feeling of the country.
§ LORD MONTEAGLE
said, that he doubted whether an assembly like the 1093 House of Lords, however strengthened and guided as it might be by the presence of great lawyers who were amongst its greatest ornaments—Members, yet when not acting judicially and bound by the rules which regulated the proceedings of courts of justice, was competent to deal with a question like this. Indeed, he thought himself entitled, in opposing this claim, to take his stand on this point—that this case had already been heard and decided by competent courts expressly established to dispose of such cases; and that it was, therefore, inexpedient for their Lordships to interfere. His noble and learned Friend who supported the case of the present claimant had argued that the course which the English Government had pursued on this subject, especially with reference to the appropriation of funds received, as it was said, under one convention, but paid to claimants under another, was a breach of faith of which the French Government had a right to complain. He would ask his learned Friend whether the French Government had ever so complained? This was the first time he had heard such a suggestion. He might, however, be permitted to tell their Lordships that the Act authorising the payment of the claimants under one convention out of the surplus, or supposed surplus, remaining over after the payment of the claims under another convention in virtue of which the petition was presented, and Baron de Bode claimed, was passed at the suggestion of the Duke of Wellington, who had himself negotiated these conventions, and who never ceased to pay particular attention to the measures necessary for carrying them out.
§ LORD LYNDHURST
remembered that that Act was passed on the supposition that there was a surplus under the Convention applicable to the case of the Baron de Bode's claim, which was, however, then pending, as it had been during the whole of these proceedings.
§ LORD MONTEAGLE
said, that no doubt, in one sense, the Baron de Bode's case was then, as it still might be said to be, pending; but it had been debated and rejected, and he knew not by what mode of reasoning that which had been rejected could be maintained as a standing claim. His noble and learned Friend said that the misapplication of these funds was a disgrace to the English Parliament, and to those who had administered them. But this was a somewhat unreasonable charge to bring against every House of Commons, from 1094 the days of Lord Liverpool to the present Session. Who had been guilty of this alleged injustice? Why, from the days of the negotiation with France to the present, every successive Government—Parliament itself, the Commissioners of French Claims, the Judicial Committee of the Privy Council—had successively determined this question in the same way; yet, nevertheless, this question had been now treated as if a legal right had been refused by a band of conspirators from the days of Lord Liverpool's Administration downwards. The complaint of his noble and learned Friend reminded him of the juryman who denounced the eleven obstinate men who opposed his single view, as being the most stupid and obstinate of men. Was it possible, that, if this claim had been well founded, not one of those Administrations should have been favourable to it? His noble and learned Friend, indeed, suggested that the Government of Lord Derby as having agreed to appoint a Committee, had been favourable to the consideration of this claim; and he, therefore, called upon the House to carry out what appeared to him the logical consequences of the appointment of that Committee to investigate this subject. The appointment of that Committee could not, however, bind those who, like himself, had been opposed to its nomination; nor could it bind the Members of the present Government, who were not then in office; if it involved such a result, which, however, he did not admit, it could only bind the Members of the late Government, who granted it, and their interest in the subject was abundantly shown by the fact of none of them being then present to support the Motion of their noble and learned Friend.
§ LORD MONTEAGLE
replied that, true it was that the House itself technically named the Committee. But when a Government support and carry such a Motion, it was a usual and well-understood term, and one which was perfectly consistent with the fact, to say that "the Government granted a Committee."
§ LORD LYNDHURST
I had not the slightest communication with any Member of the late Government when I made that Motion for a Committee. I made it as an independent Member of the House, and the Committee was granted by the House without any opposition whatever.
§ LORD MONTEAGLE
, in continuation, said, then the noble Lord's argument in favour of the petitioner was so much the weaker, as he was thus left without the single authority on which he had seemed to rely. But it would be indeed a dangerous result if Governments, or if Parliament, should be held bound to adopt the recommendations of every Committee whose appointment it had sanctioned. It had been said that this fund had been applied to purposes other than those which were contemplated by the French Government when they agreed to pay it; for instance, that it had been applied to the building of Buckingham Palace—
§ LORD MONTEAGLE
Nor had he (Lord Monteagle) said that his noble and learned Friend did say so in direct terms; because he was too good a tactician to advert distinctly to any topics except such as would serve his argument. But it had, nevertheless, been suggested and relied on, that a large part of the funds which were provided by the French Government for the indemnification of British subjects was applied to the building of Buckingham Palace, and that this misapplication was the reason why the claims of the Baron de Bode were not satisfied. Now, it was no doubt true that such a misapplication of those funds did take place under the former Government, that of Lord Liverpool; but it was equally true that Earl Grey and Lord Spencer compelled the repayment of every sixpence (with interest) of the money forming part of the sums granted by the, French Government under the treaty for the indemnification of British subjects. The latter fact was suppressed, whereas it was sought to make an impression in favour of this claim. The whole indemnity fund had been applied to its appropriation laid long since before Parliament. It seemed a great inconsistency for the noble and learned Lord to argue alternately that everything should be condemned not strictly according to law, and yet when the case of his clients required it, he objected to the Commissioners for not giving a loose and equitable construction in deciding the cases entrusted to their decision. As officially connected for a time with the administration of these affairs, he took upon himself to say, that, without referring to his own share as Chancellor of the Exchequer in these transactions, never were more pains taken than by all parties concerned in the administra- 1096 tion of these funds. He alluded specially to the Duke of Wellington, to successive Boards of Treasury, to the Commissioners for French Claims, and to the Judicial Committee of the Privy Council. And now, what more could be effected? The funds were exhausted; the business was closed. To render the Motion of his noble and learned Friend effectual, a new grant of nearly half a million would be required; and he doubted whether discussion in their Lordships' House was the best way of obtaining a money vote from the Commons for any such purpose as the present.
§ The EARL of HARROWBY
felt bound, as a Member of the Committee, to say a few words with respect to this case. The noble Lord who had just spoken had not touched the main point. What they complained of was, that an Act of Parliament had stepped in to keep parties from a right which but for that Act would not have been refused. It had been clearly established that the property of the Baron de Bode was confiscated, and that his property was one of those in the view of the French Government when they completed the negotiation with this country; and the real question was, would this case, as it was now known and proved, receive attention from the Commissioners, if they were now sitting, and no Act of Parliament barred the claim? He contended that it would; that originally it was only opposed, because there was no proof that the property confiscated was confiscated as the property of a British subject; that it had never been before the Privy Council on its merits; and that in refusing redress, they were taking advantage of an admitted wrong. There was no complaint as to the employment of the surplus by the Treasury. If a surplus existed, it seemed reasonable to apply it to those claims which were next akin to the claims originally contemplated. But the question was, whether there was any surplus at all, until this claim, which had been set aside by technical and legal obstacles at every stage, had been satisfied? He submitted that the facts were fully established; that this gentleman was a British subject; that his property was confiscated; and that the French Commissioners had this large claim in view when they allotted a certain sum of money as compensation. It would be a public scandal to this country if it refused to do justice; and he honestly believed it was the amount of the claim alone which made each successive Government shrink from acknowledging that they 1097 were satisfied as to the facts, and that honestly the country was bound to make payment of the debt.
§ The EARL of ABERDEEN
would say but a few words in answer to what had fallen from the noble and learned Lord (Lord Lyndhurst). His Motion was to recommend the case to the favourable consideration of the Government. What did he expect him to do?
§ The EARL of ABERDEEN
would not assent to the Motion, because he thought it was one with which it was quite incompetent for the Government to deal, and because, notwithstanding the ability of the noble and learned Lord's speech, it was a claim the justice of which had not been established. If this claim were recognised, there would not be a single rejected claimant under the Convention who would not ask for a rehearing; and, as a proof of that, he had already received letters from persons having claims of a precisely similar nature. The Commissioners were a competent tribunal to decide, and the Privy Council were a competent tribunal to review their decisions. If ever there was a res judicata, this was it; and it was impossible the Government could lend itself to reopen a case which every preceding Government had considered finally and conclusively determined. The Committee which the noble and learned Lord obtained was, perhaps, acceded to incautiously, but they made their report in the month of last June; and he begged to ask the noble and learned Lord why, instead of writing him a letter on the case of the Baron de Bode, he did not write a letter to his noble Friend who was then at the head of the Government? why he did not take the opportunity of appealing to his noble Friend, whose opinions were known to be favourable to the claimant? He could only say it appeared to him there was not the slightest ground for reversing the decision to which all preceding Governments had come upon this case—to abide by the decision of competent tribunals—and he really thought, when the noble and learned Lord appealed, not to his justice, but to his mercy, it was rather giving up the strong features which he professed distinguished this case. He should be very happy to deal with any case in 1098 which he had any discretion, and where mercy would have weight, but he was afraid this was not a case of that kind. Justice must precede mercy, and he saw no ground whatever, after all that had taken place upon this subject, for taking a different course from that which had been adopted by every Government which preceded the present.
§ LORD LYNDHURST
, in reply, said, the Report of the Committee was not made until late in the Session, when political affairs were in such a state of uncertainty that it was almost impossible he could have obtained the attention of their Lordships. The noble Earl seemed to think mercy and justice were not consistent. He could not advise the petitioner to appeal to courts of justice; he was at the mercy of the Government; and therefore he appealed both to the justice and to the mercy of the noble Earl for consideration of a gentleman who had had to struggle against a combination of almost every party against him, and had at last succeeded in satisfactorily establishing his case. He could not force the noble Earl to give his consideration to the case, but it was in his power to do it. The case was unanswerable, and had certainly not been answered either by the noble and learned Lord on the woolsack, or by the noble Lord opposite (Lord Monteagle).
§ On Question, their Lordships divided:—Content 6; Not Content 16: Majority 10.
§ Resolved in the Negative.
§ House adjourned till To-morrow.