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Baron de Bode v R

State Trials Cited authorities 33 Cited in Precedent Map Related
Vincent
JurisdictionEngland & Wales
Judgment Date11 July 1851
Date11 July 1851
CourtState Trial Proceedings
59 Geo. 8. c. 31. Claims of British subjects on France
23 & 24 Vict. c. 34. Petitions of Right
47 & 48 Vict. c. 71. Petitions of Right
THE BARON DE BODE against THE QUEEN. PROCEEDINGS ON A PETITION OF RIGHT. JUDGMENT OF THE COURT OF QUEENS BENCH AFTER AN INQUISITION AND A TRIAL AT BAR, DECEMBER 11, 1845. (Reported in 8 Q.B. 208.) JUDGMENT OF THE COURT OF EXCHEQUER CHAMBER ON WRIT OF ERROR, FEBRUARY 7, 1849. (Reported in 13 Q.B. 364.) JUDGMENT IN THE HousE OF LORDS ON WRIT OF ERROR FROM THE EXCHEQUER CHAMBER, JULY 10 and 11, 1851. (Reported in 3 H.L. 449.) Certain treaties and conventions entered into between Great Britain and France in 1814 and 1815, provided for compensating British subjects in respect of property, movable and immovable, unduly confiscated by the French Government after 1792, provided that their claims were sent in within three months after November 20, 1815. By a further convention, in 1818, the French Government undertook to hand over a fixed sum to the English Government for distribution among the claimants in full satisfaction of their claims. The 59 Geo. 3. c. 31. after reciting that the commissioners for the execution of the conventions had inscribed in a register the names of all claimants who presented their claims within the prescribed period, provided that the commissioners "in order to complete the examination and liquidation of the claims of such persons who shall have caused their claims to be duly inserted," should apportion the fund among the claimants "whose names are duly entered," and apply the surplus for such purposes as the Commissioners of the Treasury should direct. The claim of the Baron de Bode was made within the three months prescribed by the convention, but, contrary to the recital in the Act, had not been entered on the register at the time of the passing of the Act. It was entered subsequently and rejected by the commissioners, and the rejection was confirmed by the Privy Council, whose decision in cases arising under the Act was final. The Baron de Bode having brought a petition of right to recover compensation out of the surplus fund paid over to the Lords of the Treasury. Held : 1. Compensation money paid by France-59 Geo. 3. c. M. Petition of Right. By the House of Lords affirming the judgment of the Exchequer Chamber That a petition of right would not lie to recover compensation from the Crown,(a) as 59 Geo. 3. c. 31. disposed of the whole fund paid over by France, and provided no means of recovering compensation except by application to the Commissioners, and by appeal from their decision to the King in Council. By PARKE, B., delivering the judgment of the Court of Exchequer Chamber, SEMBLE : That the petitioner was not precluded from claiming under 59 Geo. 3. c. 31. by the fact that his name had not been entered on the register at the time of the passing of that Act. 2. Petition of Bight. Procedure at Common Law.(b) By Lord Cottenham, L.C. That after a petition of right has been referred by the Crown to the Court of Chancery, a commission issues, as of course, to find the truth of the facts therein stated, and no judgment can be given until the commission be returned and found for the petitioner, or the facts stated by him be admitted by the Attorney General. By PARKE, B.: When the record in a petition of right has been sent into the Queens Bench on a traverse of the inquisition, the Court of Queens Bench can give judgment. (a) See Rustomjee v. Beg. 2. Q.B.D. 69. (b) See now as to procedure on petition of right, 23 & 24 Vict. c. 34 ; 44 & 45 Vict. o. 59. s. 6 ; 47 & 48 Vict. c. 71. s. 3 ; 23 & 24 Viet. c. 84, s. 18, leaves it open to the suppliant to proceed as before the passing of the Act. This was a petition of right presented by the Baron de Bode claiming indemnity for losses suffered by him at the time of the French Revolution, out of monies paid by the French to the English Government in satisfaction of the claims of British subjects whose property had been unduly confiscated by the revolutionary government. The material facts were as follows : The " Treaty of Commerce and Navigation," between his Britannic Majesty (George III.) and the most Christian King (Louis XVI.), signed at Versailles on the 239] lite Baron de Bode against The Queen, 1845-51. [240 26th of September 1786, contained the following proviso :- " Article I. For the future security of commerce and friendship between the subjects of their said Majesties, and to the end that this good correspondence may be preserved from all interruptions and disturbances, it is concluded and agreed, that if, at any time, there should arise any misunderstanding, breach of friendship, or rupture between the Crowns of their Majesties, which God forbid I (which rupture shall not be deemed to exist until the recalling or sending home of the respective ambassadors and ministers) the subjects of each of the two parties residing in the dominions of the other, shall have the privilege of remaining and continuing the trade therein, without any manner of disturbance, so long as they behave peaceably and commit no offence against the laws and ordinances ; and in case their conduct should render them suspected, and the respective Governments should be obliged to order them to remove, the term of twelve months shall be allowed them for that purpose, in order that they may remove with their effects and property, whether entrusted to individuals or to the state ; at the same time it is to be understood that this favour is not to be extended to those who shall act contrary to the established laws." The definitive treaty of peace between his Britannic Majesty (George III.) and his most Christian Majesty (Louis XVIII.), signed at Paris the 30th of May 1811, contained this Additional Article : " Article IV. Immediately after the ratification of the present treaty of peace, the, sequesters which since the year 1792 may have been laid on the funds, revenues, debts, or any other effects of the high contracting parties, or their subjects, shall be taken off, the commissioners mentioned in the second article shall undertake the examination of the claims of his Britannic Ma jestys subjects upon the French Government, for the value of the property, movable or immovable, illegally (in the French original, in-diluent, improperly) confiscated by the French authorities ; as also for the total or partial loss of their debts or other property illegally detained under sequesters since the year 1792." After the second expulsion of Napoleon in 1815, a further definitive treaty of peace between his Britannic Majesty. and his most Christian Majesty was signed at Paris on the 20th of November 1815, which contained the following article : " Article IX. The high contracting powers having caused representations to be made of the different claims arising out of the non-execution of the nineteenth and following articles of the treaty of the 30th of May 1814, as well as of the additional articles of that treaty signed between Great Britain and France " (in the original selant fait representer les differentes reclamations provenant du fait de la non-execution des articles XIX. et suivants du traite du 30 Mai 1814, ainsi que des articles additionels signes entre la Grande Bretagne et la France), " desiring to render more efficacious the stipulationsmade thereby " (desirant de rendre plus efficaces lee dispositions enoncees dans ces articles), " and having determined by two separate con. ventions the line to be pursued on each side for that purpose, the said two conventions as annexed to the present treaty shall, in order to secure the complete execution of the above-mentioned articles, have the same force and effect as if the same were inserted word for word herein." The two conventions annexed to the treaty of 1815, were designated as No. 7 and No. 13. No. 7, on which the present claim was founded, contained Articles I. IV. relating to debts (creances) incurred by the revolutionary government to British subjects since the end of 1792, and left unpaid in violation of the terms of the treaty of 1786. " Article 1. The subjects of his Britannic Majesty having claims " (porteurs de creances) " upon the French Government, who, in contravention of the second article of the Treaty of Commerce of 1786, and since the 1st of January 1793, have suffered on that account" (out (ite atteints it cet egard) " by the confiscations or sequestrations decreed in France, shall, in conformity with the fourth additional article of the Treaty of Paris of the year 1814, themselves, their heirs or assigns, subjects of his Britannic Majesty, be indemnified and paid when their claims shall have been admitted as legitimate " (apres que leurs creances auraient ete reconnues legitimes), " and when the amount of them should have been ascertained, according to the forms and under the conditions hereafter stipulated." Articles II. IV. having prescribed these conditions, Article V. dealt with claims for immovable property such as the present. Rules for determining capital due en im- movable property. " Article V. In order to determine the capital due on immovable property which belonged to subjects of his Britannic Majesty, and to their heirs or assigns, equally subjects of his Britannic Majesty, and which was sequestered, confiscated and sold, the following process shall be had: (on procedera de la maniere suivante). " The said subjects of his Britannic Majesty shall be obliged to produce " (auront it produire), " first, the deed of purchase, proving their proprietorship ; secondly, the acts " (les actes) " proving the facts " (le fait), " of the sequestration and of the confiscation against themselves, their ancestors or assignors, subjects of his Britannic Majesty. In default however of all proofs in writing, considering the circumstances under which the confiscations and sequestrations took place, and those which have since arisen, such other proof shall be admitted as the...

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