The Sun.
London, England, 1860-05-18 00:00:00

render himself liable to an indictmint at common law, The

question therefore was whether that would be an indictable

set. He was not prepared for one moment to question
the doctrine upon a matter in his opinion very different
from that before the house, namely, on the doctrine of
conspiracy to excite and foment rebellion in the
States of foreign and friendly Powers. The hon.
gentleman had quoted, and very properly, the statements
of high authorities in that house and elsewhere, that
conspiracy could be dealt with as a misdemeanour, and
punished by fine or imprisonment ; and so far from taking
any exception to that doctrine, he would cite from a de-
bate, which took place on the 4th of March, 1853, the lan-
guage of Lord Lyndhurst on a similar subject. Lord
Lyndhurst said, on that occasion, if a number of British
subjects were to combine and "conspire together to excite
revolt among the subjects of a foreign and friendly State,
and issue proclamations and manifestoes, and above all if
they were to subscribe money to purchase arms to carry
into effect that intended enterprise, such persons would
undoubtedly be guilty of misdemeanour, and liable to severe
punishment, inasmuch as it might lead to discord, and
ultimately to war, between this country and the country
against which the conspiracy was directed. (Hear, hear.)
He (the Solicitor-General) found no fault with the doctrine
thus propounded, but every English lawyer knew the dif-
ficulty in bringing to bear on such cases the operations of
the common law. They had in the case of Dr. Bernard an
instance of the extreme difficulty of bringing the common
law to bear upon an individual who conspired to bring
about an act intended to be completed in a foreign country.
He would only say, in justice to himself, that he had ex-
pressed himself the other night—that he
.had expressed
his opinion on a particular case put before him—and as
to the law on that case. He gave no opinion as to the
ease of persona who formed themselves into a committee
for the purpose of raising subscriptions, nor even as to
those who caused advertisements to be inserted in news-
papers, still less as to the penal or other consequences to
persons who might take part in such a combination.
With this limitation he held and repeated the opinion he
had already expressed; and he would only say further
upon the general subject, that in the Foreign Enlistment
Act there was strong evidence on the part of those who
framed that statute, of their conviction that the general
terms lof the law of this country were insufficient to
deal with offences of that description. (Hear, hear.)
His attention had been called by the hon. member for
King's County to the doctrine laid down in a case de-.
cided by the Court of Common Pleas. It had been inferred
that a solitary act of subscription would amount to an in-
dictable offence.. On that point he was entirely at issue with
the hon. member. He did not deny that in the case of a
foreign loan sought to be raised against a country at peace
with this country, the Court of Common Pleas, in an
action upon the contract, held that it could not be enforced,
and, that the contract was tainted with illegality. But every
lawyer knew that illegality was one thing, and liability to
bean oceeded against in a criminal court another. He thought
that when the matter was fully considered, it would be found
that there was no great difference of opinion upon it. He
concurred with the doctrine expressed in the House of Lords
as to-conspiracy, but he held that though individual sub-
scriptions, such as had been alluded to, were contrary to
common law, and any contracts between parties to such
subscriptions being tainted with illegality, could not be en-
forced in the Court of Common Pleas, they did not neces-
sarily bring the parties within the scope of the criminal
courts. (Hear.)
Mr. WHITESIDE—If the answer "given to the house
the other night by the hon. gentleman has, by means of the
electric telegraph, created some confusion abroad, I think I
can undertake to say the speech which he has just made
will not be productive of much alarm, as I rather think it
will not be understood. (Hear.) In the words of the old
couplet,—

" He darkens by elucidation
And mystifies by explanation."
(Laughter.) lam utterly at a loss to know what the hon.
and lean ed gentleman really thinks upon this matter, which
is one of great importance to the peace of Europe, and to the
estimation in which this country is to be held abroad. (Hear.)
When he sat down I was more in the dark even than when he
got up to understand what are his views upon this matter. The
question is this :—An advertisement appeared in the
papers referring to a committee of individuals who had joined
themselves together for the purpose—whether laudable or
not this is not the place to discuss—of collecting and con-
veying subscriptions to those persons who are now in insur-
rection against their severe gn the King of Naples in Sicily.
That is a fact which it is beyond the hon. gentleman's
powers of explanation to mystify. (A laugh.) I understand
that the learned gentleman was asked, in reference to that
advertisement, whether it was legal for a body of persons so
to join themselves together in this country, and whether it
was legal for persons to subscribe according to the requisi-
tion of thit advertisement. I understand him to have stated
that in his opinion it was. Forthwith his reply is flashed
over Europe, and is quoted in the Sardinian Parliament.
It has been taken up as an exposition of international law
that the more friendly you appear to be to a particular
Sovereign, the more actively you may engage in co-opera-
tion for his destruction (laughter) ; and, therefore, if to-
morrow an adiertisement were to appear from certain exiles
in some journal, referring to a committee for rozulating the
affairs of France, and calling on persons to give in their sub-
scriptions for the purpose of restoring the Orleans family
and dethroning the French Emperor, we should be told in
the same way that such a proposition was legal. (Cheers.)
To do justice to the Solicitor-General—not that I under-
stand it—the distinction which he drew was this : If an in-
dividual pays his money it may bo misapplied ; but, as it
would be opposed to the principles ot morality to inquire
whether the money was rightly applied in disposing of the
Sovereign for whose destruction, according to the terms of
the advertisement, it was morally and specifically to be ap-
plied, therefore, he says, an individual may lawfully sub-
scribe. I doubt it. (Cheers.) The hon. and learned gen-
tleman was not asked by what means such a person was to
be prosecuted, nor as to the form of the indictment—that
was not the technical question which was put ; but whether
a man could lawfully subscribe in aid of the objects which
persons forming themselves into a public body had under-
taken to accomplish. I say they could not. (Cheers.)
The SOLICITOR-GENERAL—The question is whether
they would be liable to any legal proceedings.
Mr. WHITESIDE—It is true the question is put in that
form ; but the hon. a.d learned gentleman is not asked to
specify what exact proceedings should be taken ;" and it is
impossible to escape from the difficulty by reference to the
case of an individual, because the very document shows that
he is only one of a number. (Cheers.)
Mr. E. JAMES—I should not have said a word on this
question if the hon. and learned gentleman the Solicitor
General had not cited as a precedent—or rather as an in-
stance of the difficulty of convicting persons on a criminal
charge of conspiring to commit offences against the laws of
foreign countries—the case of Dr. Bernard. That case has
nothing whatever to do with the matter we are now discuss-
ing. Dr. Bernard was not indicted for conspiracy at com-
mon law, but for an offence under a particular statute, and
he was acquitted by a jury. Inasmuch as I was the advocate
in that case, I shall refrain from stating any grounds but those
which are publicly known. It was felt on that occasion that
a statute had been perverted for the purpose of endeavour-
ing, by the indictment of an individual, to relieve the Go-
vernment from a political difficulty ; and the jury were per-
fectly justified in the view which they took, because the
Government were challenged to bring forward their legal
arguments, and, those arguments being postponed, the de-
fendant was acquitted on the facts of the case. Dr. Bernard
was indicted, not for conspiracy, as the hon. and learned
gentleman has told the house, but under a statute that was
known to every lawyer in Westminster-hall not to apr ly to
his particular case. And, therefore, when the Solicitor-
General states the difficulty of convicting persons of con-
spiracy, his observation must be taken to apply to the evi-
dence ; and if this is a conspiracy—and I, as a lawyer, have
no doubt that it is--(loud cheers)—the hon. and learned
gentleman, I think, will find grounds for reconsidering the
hasty and immature opinion which he has given on this sub-
ject. 'What clearer evidence can you have of the overt acts of
a conspiracy than the payment of money by one individual
and its receipt by another? (Cheers.) If a committee
advertise for subscriptions, they are surely supposed to be
"human beings congregated for the purposes of that subscrip-
tion; and if a person pays to them a certain sum towards
the object for which they have advertised, and they receive
.it, I want any lawyer to get up in this house and say what
dearer evidence of evert acts can be afforded. (Cheers.)
The hon. and learned gentleman, therefore, when he stated
that persons under such circumstances were not liable to
legal proceedings, answered, I think, a little off his guard,
and gave rather a rash opinion. I deem it of great import-
ance that this matter should be thoroughly understood on
the continent—(cheers) ;—and I feel that we are indebted
to the hon. gentleman the member for the King's County
for having brought it forward. (Cheers.) The hon.,and
learned gentleman the Solicitor-General spoke of this as an
offence against the Foreign Enlistment Act, which it cer-
tainly was not; it had no more to do with it than with the
habeas Corpus Act—(a laugh)—but there is a question to
which the Foreign Enlistment Act" does apply, and I ask
the hon. and learned member for the King's County to bring
that forward on another occasion. (Loud and sustained
sheering.) I allude to circumstances to which the Foreign
Enlistment Act expressly applies, to the case of parties wh•
are now committing offences under that act by carrying on
the enlistment in Ireland of persons who are to be sent over
to Rome, and there to join the army of General Lamori-
ciere. When the hon. and learned member talks of the
slaughter of priests, I think we may say with equal force
.that the transmission of recruits to swell the foreign army
Vs•hich is to take part in the massacre of the Pope's subjects,
comes equally within the provisions of the Foreign Enlist..
meat Act. (Tremendous cheering.)
The debate wee here interrupted by the appearance at
the bar of Lord PROJiY, Comptroller of the Household, who
stated that he was the bearer of the Queen's answer to the
Address of the House of Commons on the subject of pen-
Aions for wounds. The message was in the following
terms :

" I have received your address praying me to reconsider
the warrant granting pensions and allowances to officers of
the land forces, limited to wounds and injuries received in
Action; and you may be assured the subject shall receive
due consideration.
The ATTORNEY-GENERAL—There should be no
piisunderstanding with regard to the principles by which