In effect, the whole case resolves itself into a question of bona fides, and that being once established, their lordships feel obliged to come to the conclusion that the Ariel was the bonâ fide property of the claimant alone, and that no interest remained in the seller, Mr. Eckhoff.

They must, therefore, humbly advise her majesty that the decision. of the court below ought to be reversed, and the proceeds of the ship restored to the claimant; however, without costs and damages, not only because further proof was ordered and gone into, but also on account of the particular circumstances of the case.

Judgment of the Judicial Committee of the Privy Council on the Appeals of Cremidi v. Powell and Dyke (Cargo ex " Gerasimo"), and likewise Cremidi v. Parker and Dyke (Cargo ex “ Aspasia”), and of Cremidi v. Parker and Dyke (Ship " Achilles"), from the High Court of Admiralty of England (Prize,) delivered March 24, 1857.

Present: CHANCELLOR OF THE DUCHY OF CORNWALL, SIR EDWARD RYAN, SIR JOHN PATTESON, the Dean of tHE ARCHES.

This is an appeal from a decree of the High Court of Admiralty dated 8th August, 1856, condemning the cargo of the ship Gerasimo as lawful prize.

At the time of her capture this ship was bound to Trieste with a cargo of Indian corn, which she had taken on board at Galatz. She was sailing under Wallachian colours, and on the 19th July, 1854, during the prosecution of her voyage was captured as she was coming out of the Sulina mouth of the Danube, by her majesty's ship Vesuvius, under the command of Captain Powell.

*It was the duty of the captors, as soon as possible, to send their [*liv] prize to some convenient port in her majesty's dominions for adjudication, to procure the examination in preparatory of the principal officers of the vessel, and to deposit in the Admiralty Court, upon oath, all papers found on board the vessel, in order that speedy justice might be done, and that the property, if illegally seized, might be restored, with as little delay as possible, to the owners.

None of these steps were taken; the vessel and her cargo were sent to Constantinople, and detained there, together with the crew, till (after a delay, as to the cargo, of nearly three months, and as to the ship, of nearly eight months,) the vessel was released upon security, and the cargo sold at Constantinople.

The captors appear after this to have taken no steps whatever in the matter until they were stimulated to action by the claimants of the cargo.

On the 21st June, 1855, a claim was brought into the Admiralty Court by M. Cremidi, in which he claimed the cargo on behalf of Epaminondas Pana and Co., who are merchants at Galatz, and on their behalf demanded

restitution with costs and damages, and at the same time he sued out a monition requiring the captors to proceed to adjudication.

The captors proceeded accordingly, and on the 14th November, 1855, the case was heard upon the claim.

There was an absence of the usual evidence in such cases; there was no examination of the witnesses in preparatory; no affidavit verifying the ship's papers made recente facto, but an affidavit sworn by Captain Powell, on the 30th August, 1855, more than twelve months after the seizure, verifying certain papers as being all the papers which were found on board the vessel, and none of which related to the cargo.

The captors, however, produced an affidavit by a gentleman of the name of Young, who stated that he was the agent in England of the captors, and that he had received a letter from Captain Powell, dated in the month of May, 1855, informing him that the cargoes of this and other ships sent to Constantinople had been sold at that place, with the consent of the owners thereof, and the proceeds deposited in the hands of an agent.

There was also a certificate by Mr. Nicholson, who had been sent out (under what circumstances it does not appear) as a Commissioner appointed by the Court of Admiralty to take evidence on the subject at Constantinople, and Mr. Nicholson thereby certified that he had been informed that the master and the whole of the crew of the Gerasimo had long since quitted her, and could not anywhere be found.

The only evidence of property on the part of the claimant was the affidavit of Cremidi, who stated his belief that E. Pana and Co., subjects of the Ionian Islands, were the owners, and that no enemy had any intérest in it.

Neither the affidavit nor the claim stated anything as to the place of residence of E. Pana and Co.

*The learned judge, therefore, made an order, dated November [ *lv ] 14, 1855, by which he admitted the claim of Cremidi for the cargo, but directed further proof to be given by the claimant as to the property thereof, and also allowed both parties to bring in further proof as to the non-examination of witnesses in preparatory, and as to whether there was any agreement as to the sale of the cargo, such further proof to be given without prejudice to the question of costs and damages.

The cause was heard on further proof in July and August, 1856, when the learned judge was of opinion that the claimant was to be considered as an enemy of the British Crown at the time of the seizure, and that he had, therefore, no persona standi in the court. The grounds of the decision are thus stated in the report of the judgment printed at the end of the respondent's case. After referring to two documents brought in by the claimant upon further proof, the learned judge expresses himself in these terms:

"It appears, therefore, that the claimant was a merchant, resident at Galatz at the time of the shipment, and that, being so, the next question is, what national character the law impresses upon him. Galatz is in Mo-l davia; Moldavia was in possession of the Russians; and, so long as any territory is in possession of the enemy, I apprehend that the law declares

that all the inhabitants thereof, and all the persons resident therein and carrying on trade, are to be considered as enemies with respect to that trade. The claimant is erroneously described as an Ionian subject, he being resident at Galatz, and undoubtedly he is not entitled to that character for the purposes of trade. Had the truth been stated in the first instance, I should have disposed of the case at once."

Upon this ground the learned judge felt himself under the necessity of condemning the cargo, but he added, "that he should have experienced very great difficulty in coming to the conclusion that the claimant had proved his property in the cargo claimed, even if he was entitled to any persona standi in the court."

Upon the present appeal the first question is, whether the appellant, in regard to this claim, is to be considered as an alien enemy; and for this purpose it will be necessary to examine carefully both the principles of law which are to govern the case, and the nature of the possession which the Russians held of Moldavia at the time of this shipment.

Upon the general principles of law applicable to this subject there can be no dispute. The national character of a trader is to be decided for the purposes of the trade by the national character of the place in which it is carried on. If a war breaks out, a foreign merchant carrying on trade in a belligerent country has a reasonabe time allowed him for transferring himself and his property to another country. If he does not avail himself of the opportunity, he is to be treated, for the purposes of the trade, as a subject of the Power under whose dominion he carries it on, and, of course, as an enemy of those with whom that Power is at war. Nothing can be more just than this principle; but *the whole foundation of it is, that the country in which the merchant trades is enemy's country.

[*lvi]

Now the question is, what are the circumstances necessary to convert friendly or neutral territory into enemy's territory. For this purpose, is it sufficient that the territory in question should be occupied by a hostile force, and subjected, during its occupation, to the control of the hostile Power, so far as such Power may think fit to exercise control; or, is it necessary that, either by cession or conquest, or some other means, it should, either permanently or temporarily, be incorporated with, and form part of, the dominions of the invader at the time when the question of national character arises?

It appears to their lordships that the first proposition cannot be maintained. It is impossible for any judge, however able and learned, to have always present to his mind all the nice distinctions by which general rules are restricted; and their lordships are inclined to think that, if the authorities which were cited and so ably commented upon at this bar had been laid before Dr. Lushington, he would, perhaps, have qualified in some degree the doctrine attributed to him in the report to which we have referred.

With respect to the meaning of the term "dominions of the enemy," and what is necessary to constitute dominion, Lord Stowell has in several cases expressed his opinion. In the case of The Fama, 5 Rob. 114, he lays it down that in order to complete the right of property, there must

in re.

be both right to the thing and possession of it; both jus ad rem, and jus "This," he observes, "is the general law of property, and applies, I conceive, no less to the right of territory than to other rights. Even in newly discovered countries when a title is meant to be established for the first time, some act of possession is usually done, and proclaimed as a notification of the fact. In transfer, surely, when the former rights of others are to be superseded and extinguished, it cannot be less necessary that such a change should be indicated by some public acts, that all who are deeply interested in the event as the inhabitants of such settlements may be informed under whose dominion and under what law they are to live."

The importance of this doctrine will appear when the facts with respect to the occupation of the Principalities come to be examined.

That the national character of a place is not changed by the mere circumstance that it is in the possession and under the control of a hostile force, is a principle held to be of such importance that it was acted upon by the Lords of Appeal in 1808, in the St. Domingo cases of The Dart and Happy Couple, when the rule operated with extreme hardship.

In the case of The Manilla (1 Edw. 3), Lord Stowell gives the following account of those decisions :

"Several parts of the island had been in the actual possession of insurgent negroes, who had detached them, as far as actual occupancy could do, from the mother country of France and its authority, and maintained within those parts, at least, an independent government of *their [*lvii] own. And although this new power had not been directly and formally recognized by any express treaty, the British Government had shown a favourable disposition towards it on the ground of its common opposition to France, and seemed to tolerate an intercourse that carried with it a pacific and even friendly complexion. It was contended therefore that St. Domingo could not be considered as a colony of the enemy. The Court of Appeal, however, decided, though after long deliberation, and with much expressed reluctance, that nothing had been declared or done by the British Government that could authorize a British tribunal to consider this island generally, or part of it (notwithstanding a power hostile to France, had established itself within it to that degree of force, and with that kind of allowance from some other States) as being other than still a colony, or part of a colony of the enemy. There can be no doubt that the strict principle of that decision was correct."

On the other hand, when places in a friendly country have been seized by and are in possession of the enemy, the same doctrine has been held. While Spain was in the occupation of France, and at war with Great Britain, the Spanish insurrection broke out, and the British Government issued a proclamation that all hostilities against Spain should immediately cease. Great part of Spain, however, was still occupied by the French troops, and, amongst other, the port of St. Andero.

A ship called the Santa Anna was captured on a voyage, as it was alleged, to St. Andero, and Lord Stowell observed:

"Under these public declarations of the State, establishing this general peace and amity, I do not know that it would be in the power of the

court to condemn Spanish property, though belonging to persons resident in those parts of Spain which are at the present moment under French control, except under circumstances which would justify the confiscation of neutral property."

The same principle has been acted upon in the Courts of Common Law.

In the case of Donaldson v. Thompson, 1 Campb. N. P. R. 429, the Russian troops were in possession of Corfu and the other Ionian Islands, though the form of a Republic was preserved, and it was contended that the islands must be considered as substantially part of the territory of the Russian Empire if the Russian power was there dominant, and the supreme authority was in the Russian Commander; or, if not, that the Republic must be considered as a co-belligerent with Russia against the Porte, since the Emperor of Russia derived the same advantages, in a military point of view, from this occupation of the islands as if he had seized it hostilely, or the Ionion Republic had been his ally in the war he was carrying on.

Both these propositions, however, were repudiated by Lord Ellenborough, and afterwards, on a motion to set aside the verdict, by the Court of King's Bench, Lord Ellenborough observing, "Will any one contend that a Government which is obliged to yield in any quarter to *superior force, becomes a co-belligerent with the power to which it yields? It may as well be contended that neutral and belligerent mean the same thing."

[*lviii]

The same doctrine was afterwards laid down by the Court of King's Bench, in the case of Hagedorn v. Bell, 1 Maule & Sel. 450, in the case of a trade carried on with Hambugh, which had been for several years, and at the time was, in the military occupation of the French.

The distinction between hostile occupation and possession clothed with a legal right by cession or conquest, or confirmed by length of time, is recognised by Lord Stowell in the case of The Boletta, 1 Edw. 171.

A question there arose whether certain property belonging to merchants at Zante which had been captured by a British privateer, was to be considered as French or as Russian; that question depending upon the national character of Zante at the time of the capture.

Lord Stowell observes:

"On the part of the crown it has been contended, that the possession taken by the French was of a forcible and temporary nature, and that such a possession does not change the national character of the country until it is confirmed by a formal cession or by a long lapse of time. That may be true, when possession has been taken by force of arms and by violence; but this is not an occupation of that nature. France and Russia had settled their differences by the peace of Tilsit, and the two countries being at peace with each other, it must be understood to have been a voluntary surrender of the territory on the part of Russia."

On this ground he held the territory to have become French territory, remarking, in a subsequent passage of his judgment, "that this was a cession by treaty, and not a hostile occupation by force of arms, liable to be lost the next day.”