sentence the Court itself(m) sanctioned an appeal "ad impartiales exteros," that is, to another German University.(n) This learned body delivered at great length the reasons of their judg ment. They rightly said that the real question was, whether Napoleon had, or had not, become the true creditor of the Hesse-Cassel funds. (o) They drew a broad distinction between the validity of acts done by a mere transient Conqueror and acts done by him after the kingdom had been wholly subdued, and the subjects had either expressly, or by necessary implication, accepted him as their ruler. In the former case the Conqueror's right was confined to the effects of his private acts, to the occupatio bellica, and required actual seizure and possession for its valid exercise. In the latter case the rights and title of the Conqueror had been ratified by the Public Act of the State. As *Napoleon's right and [*714] title was of the latter kind, the fact that these funds were the private property of the Prince, and not the public property of the State, became of no importance. There were not, in this respect at least, two questions, (as Pfeiffer has suggested,) one respecting the legal validity of the acts of Napoleon, another respecting those of Jerome, King of Westphalia; for Napoleon had been recognized and had acted as Sovereign of Hesse-Cassel before he delivered that country to his brother. (p) They rejected the consideration of the justice or injustice of the war which Napoleon had waged against the Prince, wisely holding that the presumption of law, upon which they were bound to act, was in favour of its justice.(9) Nor did it matter that the Prince, instead of giving battle to Napoleon, had departed, and resigned his country to the military occupation of the enemy. (r) They pointed out that the Prince had, from the time of his departure or abdication, been an active enemy of the new government established under Napoleon and Jerome, and that, by the laws of all countries, the property of a person, qui sub publico hoste egit against the state, was confiscable. They rejected the doctrine that, because the Prince had retained possession of the instruments containing the written acknowledgments of the debtors, (schulddocumente,) he therefore had constructive possession of the debts, the circumstances being considered under which the money had been borrowed,-(s) adopting the principle of the Roman Law, "Dissolutæ quantitatis retentum instrumentum inefficax penes creditonon est ambigui juris.”(†) rem remanere [*715] *They considered how the question was affected by the return of the Prince, and by his reclamation of his former property, and they held that the principle of the decision of the Amphictyons in the (m) “‘Ad impartiales exteros' von Amtswegen verschickt."-Schweikart, p. 12. n) The name is not given by Schweikart. (0) Schweikart, p. 14. (p) Schweikart, p. 25. (9) Menochius, de Præsumt., 1. vi. præsumt. 96, num. 4, et 17. r) Schweikart, pp. 44, 45. (s) Ib., 55. Cod. de Solut. 1. viii. t. xliii. ss. 4, 19. Cod. ad Exhib. 1. iii. t. xlii. Cod. Depositi, 1. iv. t. xxxiv. s. 5, in fin. s. 9. Dig. Cod. 1. x. t. iv. s. 18. (†) Cod. de Condict. ex Lege, 1. iv. t. ix. s. 2. case of the Thebans and Thessalians was sound law, and that it had been so treated by almost all jurists, ancient and modern.(u) They considered the general question whether, after peace, there did or did not take place a restitutio in integrum with respect to those who had been dispossessed by war.(x) They held that, even according to the letter of the Roman Law, the restored owner must take the property as he found it, and was entitled to no compensation for the damage which it might have suffered in the interval; that what was actually gone he could not claim to have replaced; and especially that what the public exchequer (fiscus) had alienated was not to be restored. (y) That to such alienations the principle of all law, whether private, public, or international, was expressed in the words of the Roman Law, "Non debit quod ritè et secuudum leges ab initio actum est, ex alio eventu resuscitari." (2) It was impossible, these judges observed, to consider the return of the Prince as a continuation of his former government. He had not been constantly in arms against Napoleon, and at last successful, by force of arms, in recovering his domains. He had been treated by the Peaces of Tilsit and Schönbrunn as politically extinct, and the King of *Westphalia had been recognized by the Continental Powers as Regent of Hesse-Cassel. (a) [*716] They travelled through a variety of Treaties (b) to show that the conventional practice of states is in accordance with this view; and especially, that the non obstante clause, sometimes found in Treaties-e. J., "non obstante toutes donations, concessions, declarations, confiscations"-(c) applied to immovable and not movable property, unless the latter were specially designated. They remarked that the Prince's own tribunals of Hesse-Cassel had pronounced (27th June, 1818) that those subjects of the King of Westphalia who had paid to him or his exchequer their debts, and received due discharges, could not be legally called upon to pay a second time; and they thought the principle of that decision, as well as the authorities which they had referred to, led them to the judicial conclusion that all the debts, whether the whole sum had been paid or not, for which discharges in full had been given by Napoleon, were validly and effectually paid; and they therefore, so far, reversed the former sentences, leaving, it should seem, both parties to pay their costs. (d) (u) "Und so urtheilen fast alle ältere und neuere Rechtgelehrte, welche sich über diesen fall geäussert haben."-Schweikart, pp. 58, 61. x) Ib., p. 67. (y) "Constitutio autem divæ memoriæ Zenonis benè prospexit iis qui a fisco per venditionem aut donationem, vel alium titulum accipiunt aliquid: ut ipsi quidem securi statim fiant et victores existant sive experiantur sive conveniantur."-Instit., 1. ii. t. vi. 14, in Jure. (2) Cod. de Administ. Tutor., 1. v. t. xxxvii. s. 25. (a) They refer to Zachariah, Ueber die Verpflichtung zur Aufrechthaltung der Regierung des Königreichs Westphalen. Heidelberg, 1817. (b) Schweikart, pp. 74-79. (c) Ib., p. 79: "Nur an Immobilien und radicirten Renten nicht an bewegliche Sachem wenn dies nicht besonders ausgedrückt war." (d) The judgment was given at Mecklenburgh, and was in the name of the DLXXIII. (2.) The restored Prince of Hesse-Cassel not only denied the validity of the alienation of the Debts, but, as has been said, (e) of the Domains of his country. The pretext for this denial was mainly founded upon a misapplication of the "lex de captivis et postliminio," in the *Roman Law. It [*717] was manifest, nevertheless, that the analogy(f) of this jurisprudence failed in a material point. The law in question applied to propetty found in the land of the enemy or his ally, not to property transferred to a third party, and certainly not to property so transferred, by the deliberate order formally enacted and legally executed of a de facto sovereign, acknowledged by the subjects over whom he ruled, and recognized by foreign states.(g) The purchasers of these domains within the territory of Hesse-Cassel were in many instances deprived of their possession, which had been delivered to them with every formality of law. The possessor of the Freienhagen estate, for instance, was driven out of it by a troop of Hesse-Cassel hussars. (h) The unfortunate proprietors appealed in vain to the Congress of Vienna. But Prussia, through the mouth of her Chancellor, Prince von Hardenberg, declared in their favour. It was true, he said, that the additional article of the Peace of Paris (30th May, 1814) had declared the Peace of Tilsit (9th July, 1807) null and void; "but it was self-evident," he said, "that this article only applied to the mutual public relations of the contracting states, not to private relations between individuals, which had legally arisen during the continuance of the Peace of Tilsit. It would he a manifest injustice to declare on that account contracts, had between individuals under the former Westphalian *Government, invalid, which contracts had been sanctioned by [*718] the Government which the Peace of Tilsit had recognized." Nevertheless, the Congress of Vienna gave no aid to those proprietors. The Supreme Court of Appeal in Cassel was stopped by an inhibitorium(i) from taking cognizance of the matter. The German Confederation was in vain appealed to; it either could not or would not intervene between a Sovereign and his subjects: though the question appears to have been kept open before this modern Amphictyonic assembly; (k) for Rotteck complains in 1837 that, after a lapse of more than twenty years, the fate of many proprietors of Westphalian domains was yet undecided.(1) Grand Duke; but specifies "nach eingeholtern Rathe auswärtiger Rechtsgelehrten für Recht." See the Urtheil itself, Schweikart, pp. 103, 104. (e) Vide ante, p. 708. (ƒ) As to the use of the Roman Law in deciding international questions, vide ante, Vol. I. s. XL. Indeed the analogy of this law is adverse to the position; it recognizes the necessity of the case as validating an act which infringed the rights of a third party; e. g. it compelled the father returned from captivity to acknowledge the marriage of his son made, medio tempore without his consent,-a great violation of the much prized parental right. "Non mirum (says the law) quia illius temporis conditio necessitasque faciebat et publica nuptiarum utilitas exigebat."-Dig. xlix. t. xv. 12, 3, in fine. (g) Vide ante, Vol. II. c. IV. (h) Rotteck, Staats-Lexikon, pp. 488, 490. (k) Vide ante, Vol. I. c. IV. 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 *Sove[*719] reigns in the acts of the Conquerors or Usurpers was more remarkable, 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 paying 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. |