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(1851) |
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1 Sim NS |
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The King of
the Two Sicilies v. Willcox.
HIGH COURT
OF CHANCERY
Original Citation: (1851) 1
Sim NS 301
English Reports Citation: 61 E.R. 116 (Scanned, formatted text, HTML version)
Original English Reports version (PDF)
Jan. 16, 31, 1851.
Production
of Documents. Principal and Agent. Defendant. Discovery. Penalties. Witness.
Foreign Sovereign. Parties and Pleading. Earmark. Corporation.
S. C. 19 L. J. Ch. 488; 14
Jur. 751.
thereinbefore
mentioned, was reduced into writing, and bore date the 1st of July 1848, and
was signed by the secretary to the company, on behalf of the company, and by
the Defendants : that the purport or effect of such con tract; made under such
˜circumstances and trust as aforesaid, was such as in the bill mentioned; and
that such memorandum as in the bill mentioned was written in the margin of the
contract; and that the Executive Government, as representing the Parliament and
the persons who had ˜contributed to the said fund, but not otherwise the
Government in the bill called the usurping Government, did on the 20th July
1848, on being informed of the contract, declare that such Government ratified
the same; and such memorandum as in the bill stated was, on the 7th of August
1848, on the Defendants being informed of such ratification indorsed on the
contract: that by the words, The Sicilian Government, was meant (as they
believed the Steam-packet Company well knew) the said Executive Government and
the said persons forming the same who intervened in and concluded the contract
in the manner and under the circumstances before stated: and they denied that
by those words were meant such persons as in the bill mentioned or referred to;
and they denied, also, that the alleged usurping Government or any persons
acting under the authority thereof, or any person or persons applied any sums
of the Plaintiffs revenues in purchasing or procuring bills of exchange for the
purpose ˜of such bills being remitted to England or applied towards completing
the purchase of the " Vectis" and the "Bombay," or for any
such purpose. They said that the persons forming the Executive Government,
acting in furtherance of the said object of the people of Sicily by whom the
fund was contributed, did, at various times beginning in the end of July 1848
and [312] ending in March 1849, apply various sums out of the fund so
contributed, in purchasing or procuring bills for the purpose of their being
remitted to England, and which bills, or the proceeds thereof, were to be and
were applied towards completing the purchase of the " Vectis " and
"Bombay;" and they denied that such monies, or any of them, were
monies paid into the Plaintiffs Royal Public Treasury at Palermo, of which such
Government and persons had as alleged taken possession as aforesaid. The
Defendants further said that the persons for the time being acting under the
authority of the Executive Government procured the bills purchased with the
monies contributed and entrusted to them in manner and for the purposes
aforesaid, to be so made and indorsed as to be payable to the order of the
Defendants and remitted the same to the Defendants, with directions to apply
the same towards completing the purchase of the steamships; and that the
Defendants received such bills and applied the same accordingly ; that the Steam-packet
Company did, after receiving the second instalment of the purchase-money for
the ships, deliver the "Veetis" to the Defendants, who were entrusted
to buy and receive the same as aforesaid, and to certain officers and sailors
employed by them; and that the same ship was, pursuant to directions given by
the Defendants, taken away in March 1849 from England to parts beyond the seas;
and that such directions were given by the Defendants, as entrusted with the
purchase and custody of the said ship, in the manner and under the
circumstances aforesaid, and not as agents of the Government in the bill tailed
the usurping Government: and that the " Bombay " had ever since the
building thereof remained, and it still remained, in the port of London. The
Defendants denied that the Plaintiffs lawful authority was ever established in
Sicily; or that 313] he was in the undisturbed exercise of such lawful
authority; or, save as thereinÁbefore stated, in the exercise of any authority;
or that he was entitled to have the " Bombay " delivered to him; and
they claimed that ship in trust for the persons ˜entitled to the monies
contributed for the purchase of it, and who entrusted them with the purchase.
They further said that the Plaintiff having, in manner and under the
circumstances aforesaid, by force of arms, taken possession of Sicily,
appointed and constituted a commission or court of inquiry to examine into the
accounts of the monies sent from Sicily to the Defendants as before mentioned,
with a view of compelling them and the ministers of the Executive Government to
pay the said monies to the Plaintiff; and that on the 19th of December 1849 the
said commission
122 KING OF THE TWO SICILIES V. WILLCOX 1 SIM. (N.S.) 314.
or office pronounced a decree, ex
parte, condemning the Defendants and the ministers to pay the amount of the
bills, which had been purchased and remitted to the Defendants as before
stated, into the Royal Treasury of Sicily. The Defendants said, in answer to
the interrogatory as to their having documents in their possession or power
relating to the matters mentioned in the bill, that they had, in their
possession or in that of their solicitors, the particulars mentioned in the
schedule to their answer, and which related, in parts of them, to the matters
mentioned in the bill; but they denied that, by such particulars or by any of
them, the truth of such matters or of any of them would appear to be otherwise
than as was stated in their answer; and they said that they held" such
particulars as the agents and on~the behalf of the persons by whom they were
intrusted with the monies thereinbefore mentioned; and they submitted that, in
the absence of such persons, they ought not to be ordered to produce the said
particulars or any of them ; they said also that they entirely denied the title
of the [314] Plaintiff to the " Bombay," or that, from the said
particulars or any of them, such title would in any way appear or be evidenced;
and that the particulars mentioned in the first part of the schedule were
confidential communications which passed between them and the persons in Sicily
whose agents in this country they had been, and were confidential papers and
documents held by them as agents for such persons; and that the production of
the particulars in the first part of the schedule or any of them would be a
breach of trust and confidence in the Defendants towards the said persons in
Sicily, and would also, as they believed and had been advised, expose and
render subject, both such persons and also the Defendants themselves, to
criminal prosecution, punishment and penalties in Sicily, in respect of the
part taken, by such persons and by the Defendants, in the struggle against the
Plaintiff thereinbefore mentioned, and would be capable of being used, and
would be used, by the Plaintiff as evidence against such persons, and against
the Defendants when within the Plaintiffs jurisdiction, in such criminal
prosecution: and they claimed the protection of the Court against the
production of the particulars last mentioned.
Mr. Bethell and Mr. Goldsmid, for
the Plaintiff, now moved for the production of the documents mentioned in the
schedule to the answer.
With reference to the first
objection made by the Defendants to the production of the documents, namely,
that they ought not to be ordered to produce them in the absence of the persons
who intrusted them with the monies which they had applied in purchasing the
steamships, they said that the answer admitted that the fund from which those
monies were taken was contributed [315] under the sanction of the Parliament
and the Executive Government of Sicily by many thousands of the natives and
inhabitants of Sicily, for the purpose of purchasing steamships : that it was
paid to the Executive Government, and that part of it was remitted to the
Defendants, by the Executive Government, for the purchase of steamships;
consequently, the fund was admitted to be a public fund, and to have been
raised for public purposes: that, though the answer represented the Government of
the Plaintiff to be unlawful, and the GovernÁment formed in 1848 to be a lawful
one, and the war which the Sicilians had waged against the Plaintiff to be a
lawful war; yet the Courts of this country could not so regard them; but must
consider the Plaintiff (whose right to the throne of Sicily had been recognised
by this country) as the lawful sovereign of that island, and the war as a
rebellion: that the only person in a country who could represent public rights
was the lawful sovereign of that country': and as the fund was admitted to be a
public fund and to have been raised for public purposes, the objection to the
production of the documents, founded on the absence of the persons who had
contributed to the fund, fell to the ground: Jones v. Garcia del Bio (Turn.
& Euss. 297), Thompson v. Powles (2 Sim. 194), Taylor Barclay (Ibid. 2l3),Hullett v. The King
of Spain (2 Bligh (N. S.) 31; see Lord Redesdale's judgment).
With reference to the objection
that the documents, if produced, would expose the Defendants, and also the
persons who had intrusted them with the monies, to criminal prosecution,
penalties and punishment in Sicily, the Plaintiff's counsel said that the
Defendants did not [316] state that they were in Sicily or that they ever
intended to return to that island; that the possibility of their going there
and being there indicted was not a sufficient excuse for the non-production of
the documents, that the Defendants were safe in this country, and that, as it
had been decided that
1 SIM. (N.S.) 317.
KING OF THE TWO
SICILIES V. WILLCOX 123
a party who was protected from
penalties by lapse of time must produce documents, a Defendant who was
protected by place must produce them ; that if a bill were filed for an account
of dealings in a speculation in opium, in China, the Defendant could not
protect himself from answering, on the ground that he should be exposed to
penalties if he went to China; that there was no case in which the objection to
answering or producing documents had been founded on penalties inflicted by the
law of a foreign country; that the Court could not be conversant with any law
except the law of England, and could not judge as to the liability of a party
to penalties under the law of a foreign country; Doldef v. Lord HuwtingfieM (11
Ves. 283); that, even if the Government formed in Sicily in 1848 had been a
lawful one, the Plaintiff would have become entitled by conquest to its rights:
The Advocate-General of Bombay v. Amerchund (1 Knapp's Privy Coun. Cases, 329,
n.).
Mr. Kolt and Mr. Cairns, for the
Defendants.
The Defendants swear, most
distinctly, that they hold the documents in question; as agents for the persons
who intrusted them with the monies which they applied in purchasing the
steamships. Those persons are not before the Court; therefore the Court cannot
order the Defendants to produce the documents; Taylor v. Bundell (Or. & Ph.
104), [317] Murray v. Walter (Cr. & Ph. 114). The war which the Sicilians
waged against the Plaintiff was not a rebellion, but a civil war. The Plaintiff
was. the aggressor. He had violated the constitution of the island; and the
inhabitants took up arms for the purpose of restoring it. They defeated the
Plaintiffs troops, overthrew his authority, and established a Government in
conformity to the constituÁtion. The proceedings of the inhabitants were
countenanced and supported by our Government; the flag of the Parliament and
Executive Government .was recognised and saluted by bur officers and ships of
war, and the Defendants were received in this country as envoys. Therefore the
Government that sent them was recognised by the Government of this country as a
legitimate one. It is true that the Plaintiff has subverted that Government;
but in so doing be must be regarded, by the Courts of .this country, as a
wrongdoer, and, consequently, as not having acquired any right to property in
this country which, but for his wrongful act, he would not have had a shadow of
title to. This Court, therefore, ought not to interfere in any manner on his behalf.
With respect to the second
objection to the motion, we say that the Defendants are natives and inhabitants
of Sicily, and that they are residing in this country for a temporary purpose
only; and therefere they must be presumed to have the animus redeundi; and the
Court must assume, from the facts stated in their answer, that if they do
return they will be exposed to criminal prosecution, and that the documents if
produced will further that prosecution. Besides, the Courts of this country
receive evidence of the laws of a foreign country. The [318] ease put of a
person who had been engaged in smuggling opium into China has reference to a
native of this country, as to whom there is no ground for presuming an
intention to return to China. The principle in cases like the present is that a
party is not bound to criminate himself. That principle applies, whether the
party is amenable to the laws of a foreign country or to the laws of .this
country. The contingency of the penalty makes no difference; for all penalties
are contingent, and the contingency is the very thing that induces the Court to
protect the party; Brownsword v. Edwards (2 Vez. 243), Harrison v. Southcote (1
Atk. 528), Maccallum v. Turton (2 Youn. & Jerv. 183).
Mr. Bethell, in reply.
From the commencement to the
termination of the proceedings mentioned in the pleadings, the Plaintiff was
the lawful sovereign of Sicily, and was recognised as such by this country. It
is true that the exercise of his authority was suspended for a short time: but
he never ceased to be King of Sicily, nor did this country ever recognise any
other power. Some letters are set out in the answer as having proÁceeded from
authorized agents of the British Government; but there is no distinct averment,
nor is it the fact that the revolutionary Government of Sicily was ever
recognised by Her Britannic Majesty. The Plaintiff, being now restored to his
throne, is entitled to the benefit of all the acquisitions and contracts made
by the rebellious Government. The Defendants say that they hold the documents
as agents for the persons who intrusted them with the money with which they
purchased the
124 KING OF THE TWO SICILIES ' V.
WILLCOX 1 SIM. (N.S.) 319.
ships. But the Plaintiff says, in
effect, that he adopts the contract which the Defendants en-[319]-tered into
with the Steam-packet Company for the purchase of the ships, and therefore the
Defendants are become his agents, and the documents which they hold are his
documents. This Court cannot recognise a subject as having -a stains in
opposition to his lawful sovereign.
With respect to the liability to
penalties and to criminal prosecution, I have to observe, first, that the
Defendants cannot be placed in jeopardy, except by their own voluntary act; and
if they were now in jeopardy, they could not withhold the docuÁments from a
person who is the owner of or has an interest in them. Secondly, the protection
of third persons has never been considered as a ground for withholding
documents. Lastly, the Defendants have admitted the whole corpus delicti in the
body of their answer: Ewing v. Osbaldisfon (6 Sim. 608).
the vice-chancellor [Lord
Cranworth]. I cannot decide this case satisfactorily to myself without looking
through the bill and answer.
There are two points of very great
nicety in point of law. In the first place, the two Defendants in whose'hands
the documents are say : " They are not our property, but they are the
property of certain persons who exercised the functions of a proviÁsional
Government in Sicily, and who remitted to us certain monies which had been
contributed by many thousands of the inhabitants of that island for the purpose
of purchasing steamships, and we employed those monies according to the
directions of our principals." And the first objection made to the
production of these documents is this : " You cannot ask us to produce
documents that are not our own documents, but [320] are documents that we hold
in trust for others." That I take to be a good objection if, instead of
its being a case of rebellion, it had been a case in which six persons in
Sicily, having succeeded in getting a subscription from thousands of others,
had remitted the money to these parties to purchase steamships ; for then, no
doubt, the parties in this country would be mere agents. But, if the persons
who remitted the monies are members of an unlawful Government, and, after they
have exercised the functions of Government for some time, the legitimate
Government conquers them, my present impression is that that Government will succeed
to the rights of the Government they conquered, and, inter alia, to the
contracts that that GovernÁment had entered into and the property it had
purchased; and the agents for the unlawful Government will become agents for
the lawful Government: it will succeed to the agency as well as to the
property.
With regard to the second
objection to the motion, I confess that I was surprised to hear that a
Defendant may say he will not answer anything that will subject him to
penalties in a foreign country, particularly -if that country is his native
country. I do not, however, mean to say at present that it may not be so. But I
cannot accede to the last authority quoted by Mr. Bethell: for a majority of
the Judges decided in G-arbett's case (1) that, if a witness is asked as to
matters which may subject him to penalties, he may stop at any time, although
[321] what he has disclosed may be ample evidence to convict him. I cannot
reconcile that with the decision in Ewing v. Osbaldiston.
Jan. 31. the ViCE-CHANCELLOR [Lord
Cnanworth]. The bill alleges that, from the month of March 1848 up to the month
of April 1849, the Government of Sicily was usurped by certain of the
Plaintiff's subjects, who, during that period, exercised the functions of.
Government to the exclusion of the Plaintiff, their rightful sovereign : that
the usurping Government, while it so exercised the functions of Government,
employed the Defendants Granatelli and Scalia, as their agents or commissioners
in this country, and remitted to them, from time to time, large sums of money,
part of the Eoyal revenues of the Plaintiff in his Treasury at Palermo, to be
employed in the purchase of two steamships, called the " Vectis " and
the "Bombay," for the use of the usurping Government: that the said
Defendants accordingly entered into contracts in this country for the purchase
of the said two ships, from the Peninsular and
(1) Their Lordships held that it
made no difference in the right of the witness to protection, that he had
before answered in part; their Lordships being of opinion that he was entitled
to claim the privilege at any stage of the inquiry: Begina v. Garbett, 2 Carr.
& Kirw. N. P. Cases, 474.
1 SIM. (N.S.) 322.
KING OF THE TWO
SICILIES V. WILLCOX 125
Oriental Steam-packet Company (who
are made Co-defendants), and actually obtained possession of the
"Veetis" and sent it to Sicily, and paid over the money so remitted
to them to the company in discharge of the price agreed to be paid for the
purchase of the "Veetis," and on account of the money agreed to be
paid for the "Bombay" which was nearly ready for sea: that, in or
about the month of April 1849, the Plaintiff regained possession of the island
of Sicily, and was restored to all his rights of sovereign thereof, and so
became entitled to the steamships and the benefit of the said contracts entered
into by the usurping Government through the agency of Granatellia and Scali.
The bill prays for an injunction to restrain [322] the Defendants from parting
with the possession of the "Bombay" without the consent of the
Plaintiff.
Granatelli and Scalia, by their
answer, admit the facts stated in the bill as to the seizure of the Government
of Sicily by divers subjects of the Plaintiff; but they say that the persons
who so took possession of the Government could not properly be designated as a
usurping Government, because the Plaintiff had violated the rights of his
Sicilian subjects by acting in a manner not warranted by the fundamental laws
of that country; and they state and rely on various circumstances leading to
that conclusion, and shewing or intended to shew that, whilst the so-called
usurping Government held supreme sway in the island, it exercised de facto the
functions of Government, and was recognised by various European States. With
reference to the immediate subject of this suit, namely, the purchase of the
steamships, the case made by the answer is that, though it is true that the
so-called usurping Government took possession of the money in the Eoyal
Treasury at Palermo, yet that no part of that money was employed in the
purchase of the ships, but only in discharging the ordinary expenses of
Government; and that many thousands of the inhabitants of Sicily contributed
and paid, under the sanction of the Parliament and of the Executive Government,
large sums into a fund for the purpose (inter alia) of purchasÁing steamships;
and that a sufficient part of that fund was remitted, through the Executive
Government of Sicily, to the Defendants in this country, to be by them, applied
in the purchase of two steamships ; and the Defendants therefore submit that
they are accountable for such money only to the persons by whom the same was
conÁtributed, and that no decree can be made in this suit, [323] constituted as
it is, and to which the persons by whom the money was remitted are not parties.
With regard to the contract for the purchase of the steamships, they say,
" that these Defendants did, at the beginning of July 1848, on behalf of
the people of Sicily who had conÁtributed to the fund hereinbefore mentioned,
and by their direction, communicated through the said Executive Government, but
not otherwise by the direction or on behalf of the said Government in the bill
called the usurping Government, enter into a contract or agreement with the
Defendants, the Peninsular and Oriental Steam-packet Company, for the purchase
of two steamships in pursuance of the trust hereinÁbefore stated; and such
contract or agreement was to be subject to ratification by the Executive
Government ,as representing the Parliament and the persons who had contributed
the monies as aforesaid, but was not otherwise to be subject to ratificaÁtion
by the Government in the bill called the usurping Government: and such contract
or agreement, made under such circumstances and trust as hereinbefore
mentioned, was reduced into writing, and did bear date the 1st day of July
1848, and was signed by the Defendant, Charles Wellington Howell (the
secretary), on behalf of the said company, and by them these Defendants; and
that the short purport or effect of such contract, made under such
circumstances and trust as aforesaid, was such as is in the bill in that behalf
mentioned, and such memorandum as in the bill in that behalf mentioned was
written in the margin of such contract; and the said memorandum was in such
words and figures or of or to such purport or effect as in the bill in that
behalf mentioned." It becomes necessary therefore to refer to the bill;
and by the bill it is stated that the contract bore date the 1st of July 1848,
and was signed by the secretary of the company, and by Granatelli and Sealia;
and that the short purport or effect of [324] such written contract was that
Granatelli and Scalia, who were therein described ,as Commissioners for the
Sicilian Government, thereby agreed to buy, and the Peninsular and Oriental
Steam-packet Company thereby agreed to sell the steamship called the
"Veetis," built at Cowes, for 45,000,
126 KING OF THE TWO SICILIES V. WILLCOX 1 SIM. (N.S.) 325.
and also the least advanced of the
two steamships then building for the said company at Northfleet for 60,000, to
be paid as follows:-20,000 on the ratification of the agreement as thereinafter
mentioned, and the further sum of 20,000 when the two steam-vessels should be
completed for sea, so far as related to the said company, in the same st^te as
contracted for by the builders;, and that any alterations required by the
purchasers for war purposes should be made by them at their own expense; and
that the balance of the purchase-money, with interest at 5 per cent, per annum,
should be paid by bills, or such security as might be approved of by the
company, in two equal payments, at three and six months' date, on the delivery
of the vessels; and it was thereby also agreed that, upon completion of the
purchase, bills of sale should be made out and executed, and that the
steam-vessels, with what belonged to them, should be delivered according to the
specification therein referred to; and in the margin of such written contract
was written the memorandum following; that is to say; " It is stipulated
by the contracting parties that this agreement is subject to ratification by
the Sicilian Government in all July current." And the Defendants say that
the contract was ratified by^the Government: they say that the Executive
Government, as representing the Parliament and the persons who had contributed
to the fund as aforesaid, but not otherwise the Government in the bill .called
the usurpÁing Government, did, on the 20tkof July 1848, on being informed of
the contract, declare that such Government ratified it, and a memorandum was,
on the 7th of August 1848, on [325] the Defendants having been informed of such
ratification, endorsed on the contract, and signed by the Defendants, and by
the secretary to the company on behalf of the company, and such memorandum was
in the words and figures or of or to the purport or effect in the bill in that
behalf mentioned; and the Defendants say that by the words " The Sicilian
Government" was meant, as they believe the company well knew, the
Executive Government, and the persons forming the same, who intervened in and
concluded the contract in the manner and under the circumstances therein
stated. The Defendants then state the mode in which the money was remitted to
them in this country. They say : " That the persons forming the Executive
Government, acting in furtherance of the object of the people of Sicily, by
whom the fund hereinbefore mentioned was contributed, did, at various times,
beginning in the end of July 1848 and ending in March 1849, apply various sums,
out of the fund so contributed as aforesaid, in purchasing or procuring bills
for the purpose of their being remitted to England, and in paying and providing
for bills -drawn in England on Palermo, Paris and Marseilles, which bills, or
the proceeds thereof, were to be paid and were applied towards completing the
purchase of the said steamships, the ' Vectis' and ' Bombay'; but they deny
that such monies, or any of them, were monies paid into the Plaintiffs Eoyal
Public Treasury at Palermo, of which such Government and persons had, as
alleged, taken possession as aforesaid." That same statement is repeated
once or twice. Then they say: " That, in the month of December 1849, the
persons forming the said Executive Government did, in furtherance of the object
of the people of Sicily, by whom the fund hereinbefore mentioned was
contributed, apply sums, amounting to 20,000 and up-[326]-wards, out of the
fund so contributed as aforesaid, in purchasing bills on England to go towards
paying for the said steamships." The Defendants then state certain
proceedÁings which have taken place in Sicily since the Plaintiff has
re-established his authority there, whereby the Defendants, as the parties to
whom the funds were remitted^in this country, and certain members of the
Executive Government by whom the same were sent, were declared responsible for
the same; and that a commission or office, on the 19th of December 1849,
pronounced, ex parte, a decree condemning the Defendants and the members of the
Executive Government, jointly and severally, to pay to the Koyal Treasury of
Sicily the amount of the bills of exchange which ˜were sent to the Defendants
to pay for the steamships. The answer admits that the " Vectis " was
paid for and sent to Sicily during the continuance of the executive or usurping
Government; and that large sums have been paid by the Defendants, out of the
monies remitted to them, on account and towards the purchase of the "
Bombay;" and then, with reference to the charge as to documents, the
Defendants say. (See ante, 313 and 314.)
The question on this answer is
whether the Plaintiff is entitled to call on the
1 SIM. (N.S.) 327.
KING OF THE TWO SICILIES
V. WILLCOX 127
Defendants to produce the
documents in their possession. As the answer admits that the documents relate
to the matters in question in the cause, the Plaintiff is, primA fade, entitled
to see them. But the motion was resisted oh two grounds: first, because-the
Defendants say they hold the documents merely ,as trustees or agents for the,
persons by whom they were enteusfced with the-money, and so ought not, in their
absence, to be compelled to produce them; and, secondly, because, as to the
documents in the first part of the [327] schedule, their production would
subject the Defendants themselves, and the persons by whom the money was
remitted, to criminal proceedings in Sicily.
I am of opinion that neither of
these grounds is tenable.
With respect to the first, there seems to me to be a studied ambiguity
in the language of the answer. The Defendants say they hold the documents as
agents and on behalf of the persons by whom these Defendants were entrusted
with the monies. Whom
do they mean to designate by these words ? The several thousand inhabitants of Sicily by whom,
they say, the funds were subscribed, or the Executive Government who
commissioned the Defendants to purchase the ships'? Not, surely, the former; there was no privity between them
and the Defendants. The
people by whom the money was raised trusted the then existing Government with
the funds, leaving it to them to purchase the ships. The answer represents jthe Defendants--a&
having acted on behalf of the people, that is to say, the whole people of
Sicily, and by their direction communicated through the then Government. Now, it is absurd to speak
of a whole people, as cestuis que trust, to be made parties to a suit in this
Court. If they can be
treated as cestuis que trust, it is obviously impossible that they should
appear or be represented here otherwise than by their Government. Have the Defendants, then,
a right to say that the persons who carried on the Government when the money
was remitted to England are their cestuis que trust, and so that, in their
absence, they, as being merely their agents, ought not to be called on to
produce the documents ? I
think not. Every
GovernÁment in its dealings with others necessarily partakes, in many respects,
of the character of a corporation. It must of necessity be treated as a body having
perpetual succes-[328]-sion.
It would not be represented by all or any of the individuals of whom it
is from time to time composed. The answer shews, with respect to the
provisional Government, that, during the time of the transactions in question,
material changes took place as to the persons who from time to time exercised
its functions. It is
impossible ^to say that the Defendants ever were agents of all or any of the
individuals who, from time to time, composed that Government. Those who, as constituting
the Government, stood, if they did stand, in the relation of cestuis gue trust
or of principals towards the Defendants, ceased to fill that character when
they ceased to be members of the Government; so that, the Executive Government
being now at an end, either the Defendants have ceased to fill the character of
trustees or agents at all, or they have become trustees or agents for the
Plaintiff, as the person now in possession of the supreme authority. The case may be likened to
that of a person who had in his hands property entrusted to him by a corporation. If, by the death of all the members of the corporation, or by Act of
Parliament, or otherwise, the corporation should come to an end, it surely
could not be contended that the party entrusted with the property could be made
responsible to the individuals or the representatives of the individuals who constituted the corporation when the trust was created. Reasoning from analogy, I am of opinion
that the Defendants are not, in any sense, the agents or trustees of the
individuals who composed the Government by whom the funds were remitted. If they are trustees or
agents at all, they are trustees or agents for the Plaintiff, and not for the persons from whom, as
constituting the Government for the time being, they received the funds. This point, that is to say,
the necessity of making Co-defendants the persons by whom the money was remitted
to England [329] was raised by the demurrer for want of parties. The demurrer was overruled
by the late Vice-Chancellor of England (see post, p. 334), and that decision
would of itself be decisive of this branch of the Defendant's objection, unless
by the answer some new facts are stated, shewing the necessity of making
parties persons who were not so shewn by the, bill. I think, for the reasons I have shortly adverted
to, that in this respect there is no material difference between the bill and
the answer.
128 KING OF THE TWO SICILIES V. WILLCOX 1 SIM. (N.S.) 33IX
The second point is one on which I
have not been able to discover any authority. But, on principle, I think that
the objection is untenable. The Defendants, it will be observed, say that the
production of the documents might subject certain persons in Sicily, as well as
themselves, to highly penal consequences. It is hardly necessary to-say that,
so far as the objection relates to the consequences which the discovery might
entail on others, it would not hold even if the penalties would be incurred in
this country. The privilege is confined to penal consequences likely to be
occasioned to the party himself : nemo tenetur seipswm prodere: but there is no
privilege against disÁclosing matter within the knowledge of the party, merely
because it might subject other persons to punishment. Gan the Defendants then
object to answer that which might subject themselves to penal consequences if
they should go to Sicily 1 I think not. The rule relied on by the Defendants is
one which exists merely by virtue of our own municipal law, and must, I think,
have reference exclusively to matters penal by that law : to matters as to
which, if disclosed, the Judge would be able to say, as matter of law, whether
it could or could not entail penal consequences. As, for instance, [330] if a
witness were to say, "I decline to answer that question, because it may
shew that five years ago I exercised an office without first taking the
oaths," the Judge would be able to say, as matter of law, " That
cannot subject you to penal consequences, by reason of the subsequent Indemnity
Acts." So where an Act of Parliament has passed, indemnifying witnesses
from prosecution on account of matters-to which their evidence is thought
necessary, if a witness, ignorant of the statute, were to object to answer a
question because it might subject him to penalties covered by the statute, the
Judge would be able to say, " That it is a mistake of the law ; you are
exposed to no such penalties, and must therefore answer." And very many
similar cases may be suggested. But in respect of penal consequences in a
foreign country this cannot be. No Judge can know, as matter of law, what would
or would not be penal in a foreign country ; and he cannot, therefore, form any
judgy ment as to the force or truth of the objection of a witness when he
declines to answer on such a ground. In the present case, indeed, there will
probably be no difficulty in believing that the Defendants are speaking quite
truly; as the documents may, in all probability, form links in a chain of
evidence which might enable the Courts in Sicily to convict the Defendants of
high treason. But if the principle is once admitted, it must be admitted in all
its ramifications. Thus, for instance, in a bill against a firm, some of whom,
though resident here, are Spanish subjects seeking an account of mercantile
transactions in Spain, the Defendants might refuse to set out an account of
their transactions, on account of the dealings having been (as probably they
would have been) to a great extent contraband, and so tending to subject them
to penalties for having infringed the fiscal law of Spain. The case was put at
the Bar of a bill for an [331] account of an opium transaction in China; and
instances might be multiÁplied to almost any extent by ascertaining, as matter
of fact, what acts, by the laws of any foreign country, are penal, though not
so here, and which might become the subject of investigation in our Courts. The
impossibility of knowing, as matter of law, to what cases the objection, when
resting on the danger of incurring penal conÁsequences in a foreign country may
extend, furnishes very strong and, to my mind, satisfactory evidence that the
objection cannot be sustained. It is to be observed that, in such a case, in
order to make the disclosure dangerous to the party who objects, it is
essential that he should first quit the protection of our laws, and wilfully go
within the jurisdiction of the laws he has violated. Now, in the present ease,
the-parties objecting are Sicilian subjects; and so the probability of their
returning to-Sicily may be great. But if the objection is once in such a case
admitted, it is very difficult to say why it should not apply to an Englishman,
who, having been in a foreign country and there violated the law (by smuggling,
for instance), afterwards-returns home. He may intend to go abroad again, and
then the discovery which he is here called on to make might there subject him
to penalties.
I am of opinion, for these
reasons, in the absence of all authority on the point, that the rule of
protection is confined to what may tend to subject a party to penalties by our
own laws ; and so that the objection in the present case cannot be sustained.
The consequence is that the Plaintiff is entitled to the usual order for
production of all the documents.
1 SIM. (N.S.) 332.
KING OF THE TWO
SICILIES 1 . WILLCOX 129
[332] Jan. 28, 29, Feb. 8, 1850.
The judgment referred to ante, p. 329, was delivered by the late
Vice-Chancellor of England on a demurrer filed by the DefenÁdants, Brodie
Willcox and John Mudie. The grounds of the demurrer were want of equity, and
because the members of the revolutionary Government of Sicily who intrusted the
Defendants, Granatelli and Scaba* with/the monies with which they purchased the
steamships, were not made parties to the suit.
Mr. Rolt and Mr. Cairns, in
support of the demurrer, cited Chitty's translation of Vattel, book iii. sects.
196, 204, 206, 207, 208, 292, 293 and 295. Puffendorf, book viii. chap. vi. sect.
23 (referred to in 3 Ves. 427), and chap. xii. sect. 3. Lindo v. Lord Rodney (2
Doug. 613, n. (1)), Elphinstone v. Bedreechund (1 Knapp's Privy Council Cases,
316), and Barclay v. Russdl (3 Ves. 424 ; see. 433 and 434).
Mr. Bethell and Mr. Goldsmid, in
support of the bill, cited Taylor v. Plumer (3 Mau. & Sel. 562), Scott v.
Surman (Willes, 400), The City of Berne v. The, Bank of EngÁland (9 Ves. 347),
Dolder v. Lord Huntingfield (11 Ves. 283), Wheaton on Internal. Law, vol. i.
pp. 98, 99 and 100. The Advocate-General of Bombay v. Amerchund (1 Knapp, P. C.
C. 329, note), Ogden v. Folliot (3 T. R. 726), Quinctil. Institut. Orator, lib.
v. sect. 10, Gesner's edit. pp. 295, et seq. The King of Spain v. Machado (4
Russ. 225), The King-of Spain v. Hullett (1 Bligh (N. S.), 31), Chitty's
Vattel, book iii. sects. 293 and 294, Thompson v. Powles (2 Sim. 194), Taylor
v. [333] Barclay (2 Sim. 213), Jones v. Garcia del Rio (Turn. & Russ. 297),
Glyn v;. Soares (3 MyL & Keen, 450), 12 Charles II. c. 11, s. 31, Maclean
v. Dunn (4 Bing. 722), and Foster v. Bates (12 Mees. & Wels. 226).
sir L. shadwell, V.-C. In this
case of The King of the Two Sicilies v. Willcox, I have referred to all those
passages which were cited in support of the demurrer: and I must say it appears
to me that the language that has been referred to, and which is to be found in
Puffendorf and Vattel, does not apply to the ease. There is no case upon the
record of belligerent parties. The case upon the record is a simply told tale,
uniform from beginning to end, of the rebellious subjects of an absolute
sovereign having taken the opportunity of the state of rebellion to possess
themselves of some part of that Royal property which belonged to the Plaintiff
as King. He succeeded in putting down the rebellion; and the parties who were
in rebellion against him having made use of their actual power over the Royal
fund, to send it, in the shape of bills, to this country, did not acquire
thereby any right to the property as against their sovereign. And it appears to
me extraordinary, after the cases of The Nabob of the Garnatic v. The East
India Company (1 Ves. jun. 371), and The King of Spain v. Hullett, that there
should be any difficulty raised upon the proposition : because it seems, to my
mind, to be laid down as clear as any proposition can be, that the independent
sovereign of a State is competent, in this country, to sue for his personal
rights. That appears to me, therefore, to decide in effect the great question
upon this record. And this [334] bill is constructed only for the purpose of
following, by what I may call the doctrine of earmark, that property which,
having been taken once by the rebellious subjects of the King of the Two
Sicilies was sent by them into this country, in such a manner that, by the
doctrine of earmark, possession may be traced to certain persons who are
Defendants upon the record. In that respect then, the demurrer must be
overruled.
With respect to the objection that
was made for want of parties: it does not appear to me that there is any want
of parties upon the record. The rebellious subjects certainly are not necessary
parties to the record; but those are made parties to the record who, through
the instrumentality of the rebellious subjects while they were in a state of rebellion,
did unlawfully and improperly acquire possession of the King's property.
Therefore, the demurrer must be
overruled.
April 23, 24, May 22, 1850.
Another demurrer was filed by the Steam-packet Company (who were a body
corporate) to certain parts of the bill; because the disÁcovery thereby sought
would subject the company to pains and penalties and to criminal prosecution
under 59 Geo. III. c. 69, s. 7: which [335] enacts that, if any person within
the United Kingdom shall, without the leave and licence of His Majesty, equip,
furnish, fit out or arm, or procure to be equipped, furnished, fitted out or
V.-C. VI.-5
130 -RICHARDSON V. GILBERT 1 SIM. (N.S.) 336.
armed, or aid or assist or be
concerned in the equipping, furnishing, fitting out or arming any ship or
vessel, with- intent or in order that such ship or vessel shall be employed in
the service of any foreign prince,.State or potentate, or of any person or
persons exercising or assuming to exercise aiiy powers of Government in or over
any foreign State, with intent to cruise or commit hostilities against any
State, prince or potentate with whom His Majesty shall not then be at war,
every such person so offending shall be deemed guilty of a misdemeanour, and
shall, upon conviction thereof, upon any information or indictment, be punished
by fine or imprisonment, or either of them, at the discretion of the Court in
which such offender shall be convicted.
Mr. Stuart, Mr. Chandless and Mr.
Willes appeared in support of the demurrer,
and -
Mr. Bethell and Mr. Goldsmid, in
support of the bill.
sir L. shadwell, V.-C., said that
in some cases, such as not repairing a bridge, or not complying with an order
of justices, a corporation might be liable to be indicted ; but those cases
were exceptional; and the general law of England was that a corporation could
not be indicted for crime : that, since the case was argued, he had consulted a
learned Judge who coincided with him in the opinion which he had formed;
namely, that the Steam-packet Company could not be indicted under the Act
referred to; and he was confirmed in that view by [336] the language of the Act
which referred to individuals only : consequently, the demurrer must be
overruled'.