DLXXIV. It is a circumstance(m) well worthy of the attention of the jurist, the statesman, and the historian, that when the Allied Powers of Europe overthrew the dynasty of Napoleon, and restored to the countries which he had subdued their legitimate sovereigns, there were but two or three inferior states, and those in Germany,(n) which attempted to deprive proprietors of domains acquired by them under the authority of their de facto rulers. Austria, Prussia, Russia, the Bourbon Sovereigns. in France and Italy, Sardinia, and the Pope, respected the law of reason, of justice, and of nations, and left undisturbed titles so acquired. The discreditable exception of these German States arose, no doubt, in some measure from the habit which their rulers still retained of considering the power which they as sovereigns possessed, as equivalent to that of a father over his children, and of treating the whole country as their patrimony. On the other hand, the general acquiescence of restored *Sovereigns in the acts of the Conquerors or Usurpers was more re[*719] markable, because the Peace of Paris (Art. 27) had only protected French subjects in their possessions acquired "à titre onéreux" in the departments of Belgium, the left bank of the Rhine, and the Alps beyond the limits of old France. Koch(o) actually defends this limitation of the general amnesty on the ground that the Allies would otherwise have recognized the usurpation of Napoleon, and his authority to alienate the domains of countries which he had conquered. Therefore, he says, the Allies did not legalize the alienations in Holland, in the Transrhenish Provinces, in the Tuscan or Papal States. But Koch's reasoning is both inconsistent and unsound :-the former, because, if good at all, it was applicable to all the territory acquired by France since the Revolution,— the latter, because it is contrary, as has been attempted to be shown in the preceding pages, to the true principles of International Justice. Moreover, he admits that the restriction of the Amnesty in this particular was solely for the purpose of protecting the restored monarch of France against the reclamations and solicitations of proprietors who had been despoiled during the reign of Napoleon. But, as has been seen, the good sense, if no higher motive, of the restored Sovereigns, gave an almost universal application to the principle, and rejected the limitation. *CHAPTER VII. [*720] POSTLIMINIUM.-DECISIONS IN ENGLISH COURTS OF JUSTICE. DLXXV. THE question as to the right to confiscate the Public Debts (m) Staats-Lexikon, iv. p. 483. (n) Koch say (Traités de Paix) Hanover and Hesse only, t. iii. p. 364, (Brussels ed. 1838.) (0) Rotteck, Staats-Lexikon, p. 364. of a State has been already discussed, and, generally speaking, the principles relating to this subject are the same as those which relate to the confiscation of Private Debts. (a) It has been stated, in an earlier part of this volume, (b) that the right of confiscating the private debts of an enemy is a corollary to the right of confiscating his property. That, however rigorous and inexpedient the application of this summum jus may be, it is nevertheless competent to an enemy to exercise it. That this position is supported by the reason of the thing, and by the authoriety of jurists and judges on the Continent of Europe and in the United States of North America. DLXXVI. Nevertheless, in 1817, the English Court of King's Bench made a decision(c) wholly at variance with these authorities. A Dane, who had been for many years naturalized by Act of Parliament, and resided in this country, brought an action in the English Court against a Danish subject, who had been arrested and held to bail in this country. The debt had been contracted in England, at a time when the Danish debtor was resident in Denmark, having a house of trade established there, and when *Denmark and England were at peace with each [*721] other. Proceedings had been instituted in the Court at Denmark for the recovery of this debt: while these were pending, in 1807, a war broke out between England and Denmark, and an ordinance was therefore made by the latter, dated 16th August, 1807, whereby all ships, goods, moneys, and moneys' worth were declared to be sequestrated and detained; and by another ordinance, dated 9th September, 1807, all persons were commanded, within three days after the publication thereof, to transmit an account of the debts due to English subjects, of whatsoever nature or quality they might be, the whole of which were directed to be paid into the Danish Treasury; and in case of concealment, the person so offending was to be proceeded against by the officers of the Exchequer; and Commissioners were appointed to receive the sequestrated debts to them the debt in this case had been paid, and it was contended, for the defendant, that it was a valid discharge according to International Law. The plaintiff, on the other hand, contended,-(1.) That the ordinance was contrary to International Law; (2.) That it did not appear to have been a compulsory payment under the ordinance; (3.) That the defendant, being a Danish subject, paid to himself in ing to the Government, because every subject of a State is deemed to be a party to the laws of his own Government. The English Court, presided over by Lord Ellenborough, pronounced in favour of the plaintiff, and against the validity of the defence which had been set up. The Court observed, indeed, that the ordinance in question had not been followed up by any practical measure of compulsion upon the subjects of Denmark; that there had been nothing in the nature of process against the defendant to enforce the payment of this particular debt-nothing analogous to the seizure or condemnation of corporeal things taken in the time of war; and that, though the Seques (a) Vide ante, p. 133. See, too, Story's Conflict of Law, ss. 334, 348, 351. (b) Vide ante, pp. 132-4. (c) Wolff v. Oxholm, 6 Maule and Selwyn's Reports, p. 100. ARD tration Commissioners were informed of the debt in 1807, the defendant (6.) Lastly and chiefly, the Court said that it was admitted that, notwithstanding all the violent measures to which recourse had been had during the extraordinary warfare that characterized those times, the Ordinance of the Court of Denmark stood single and alone, not supported by any precedent, nor adopted as an example in any other state. They therefore gave judgment for the plaintiff. *DLXXVII. The authority both of Bynkershoek and of the Dutch Tribunals is directly opposed to this judgment. « Qua [*723] propter (he says) si subditus Principi qui credita publicavit, solverit quod hosti debebat liberationem contingere, optimo jure responsum est."(e) His authority does not appear to have been cited in the argument, and to have been but slightly referred to in the judgment. And it seems to the writer of these pages that the opinion of Grotius does countenance the doctrine. The passage, "Incorporalia jura quæ universitatis fuerant, fient victoris quatenus velint," cannot be otherwise interpreted. The famous passage in Quintilian(f) relating to the remission of the Thessalian debt is, as has been shown, referred to by Grotius, Puffendorf, and Vattel; and it was also discussed in Wolff v. Oxholm.(g) The question, it will be remembered, was, did the remission of the debt fall within the jus victoris? Quintilian suggests that it did not "quia id demum sit ejus quod ipse teneat; jus quod sit incorporale apprehendi manu non posse-non in tabulis esse jus. These and other arguments (d) L. iii. c. vii. s. 4, c. viii. s. 4. (e) Consil. Holl., t. i., consil. 297, cited by Bynkershoek, Q. J. P., b. i. c. vii. Grotius condemns, (h) while mentioning the transaction as exemplifying his position, that jura incorporalia do belong to the victor; and yet the judge in Wolff v. Oxholm says that because he does not go on, as Vattel did, to express a conclusion that private debts may be confiscated, "there is nothing in the works of that very learned author (Grotius) which can give a countenance to such a right."(1) Surely this is an inaccurate and erroneous statement. Heffters, whose opinion is on the whole in favour of the continuing liability of the creditor, and who therefore adopts the argument of *Quintilian, admits that he has to [*724] contend against the opinion of a phalanx of International Jurists.(k) In this decision of the English Court, the authority of Vattel appears to have(7) been greatly overestimated and not a little overstrained, the inferences from the language of Grotius and Puffendorf to be ingenious rather than sound: while to the high authority of Story and the American Tribunals, no allusion appears to have been made by counsel or judge. The question for the International Jurists who review this judgment is, really this, whether the practice of nations was so rooted and confirmed in opposition to the strict right as to have superseded it-whether, to repeat a former passage in this work, this was one of those cases in which a usage, which had its origin in the precarious concession of Comity, had become transferred, through uninterrupted exercise and the lapse of time, into the certain domain of Right.(m) It must be remembered that this was a decision against a foreigner for obeying the law of his own country, and that this law was warranted by the authority of most eminent jurists and judges. There were, no doubt, traces of mala fides in this case, which had their effect upon the minds of the English judges; but, as far as the general principal is concerned, the decisions of the American, Dutch, and German Courts (none of which, strange to say, were quoted,) appear much sounder; and perhaps, if the occasion should present itself, the decision of Lord Ellenborough might be reversed in England. It was the decision of a single Court not much accustomed to deal with questions of International Law. Moreover the argument was not, as in the case of *Potts v. [*725] Bell, (n) before Lord Kenyon, or in the more recent slave case of the Felicidade, argued with the assistance of Civilians,(0) and some of the principal International authorities were not referred to. DLXXVIII. Where a Treaty has awarded compensation for confiscated property, there have been various decisions in England upon cases alleged to fall under this category: they have been principally decided by the Privy Council, on appeal from Commissioners appointed to inquire into the claims. Among the principal cases the following relate to In (h) L. iii. c. v. s. 77. (i) 6 Maule & Selwyn's Rep., p. 103. (k) "Die meisten Publicisten haben sich in lange Reihefolge für ein solches Verfügungsrecht ausgesprochen, u. s. w."-Heffters, p. 131. (7) L. iii. c. viii. s. 4. (m) Vol. I. p. 161. (n) 8 Durnford & East's Rep., p. 548. (0) Vide ante, Vol. I. p. 333. Denison's Crown Cases reserved, vol. i. p. 154. dividuals. It has been decided by the Privy Council that a person who possesses the characters both of a French subject under the Municipal Law of France, and of a British subject under the Statute 13 Geo. 3, c. 26, as the grandson of a natural-born British subject, although both he himself and his father were born in a foreign country, is not entitled to claim compensation for a loss he has sustained from a confiscation of his property by the French Government under a Treaty between Great Britain and France, giving compensation for such a loss to British subjects.(p) That an Englishman who has taken out letters of naturalization in France is not entitled to compensation as a British subject under such a Treaty.(q) That the foreign wife of a British subject is not entitled to compensation for the loss of her separate property, under a Treaty providing for such a compensation for British subjects, unless she has herself acquired a domicile in Great Britain at the time of her loss. (r) That a foreigner domiciled in Great Britain is, *under such a Treaty, entitled to claim compensation for his losses. (s) [*726] The same Judicial body has decided, with respect to Corporations, that a corporation of British subjects in a foreign country, existing for objects in opposition to British law, and under the control of a foreign government, is not entitled to claim any compensation from the government of the country in which they existed for the confiscation of their property under a Treaty giving the right to British subjects.(t) It has been also decided that the individual members of such a corporation are also equally incapacitated from making any claim, as British subjects, from the loss of their income arising from the funds of such a corporation.(u) That a corporation of Irishmen, existing in a foreign country, and under the control of a foreign government, must be considered as a foreign corporation, and is not therefore, entitled to claim compensation for the loss of its property, under a Treaty giving the right of doing so to British subjects.(x) That it makes no difference whether the purposes for which such a corporation existed were or were not contrary to the law of Ireland.(y) And generally the English Privy Council has decided, that a country re-conquered from an enemy reverts to the same state that it was in before its conquest. The British inhabitants of a part of the French dominions which was conquered by the Dutch, and afterwards re-conquered by the French, ought therefore, the Privy Council decided, to have had, after the re-conquest of that part, the same *protection that they were entitled to under a Treaty of Commerce of 1786, and they awarded [*727] compensation in respect of losses after the re-conquest, incurred by seques (p) Drummond's Case, 2 Knapp's Privy Council Rep., p. 295. Countess de Conway's Case, 2 Knapp's Privy Council Rep., p. 364. (t) Daniel v. Commissioners for Claims in France, 2 Knapp's Privy Council Rep., p. 23. (u) Ibid. (x) Long v. Commissioners for Claims on France, 2 Knapp's Privy Council Rep., p. 51. (y) Ibid. |