Court of Justice, that if a foreign Power takes prisoner an enemy, and thereby obtains possession of documents establishing his right to a debt due from another to him in his private capacity, the prisoner is entitled to relief; and the circumstance that the foreign Power is also the debtor will not alter the right, but if such documents are the property of the prisoner in his sovereign character, and are taken possession of by the conqueror in the exercise of his 'sovereign and political rights, a Court cannot interfere.

CHAPTER VI.

THE CASE OF THE DEBTS AND DOMAINS OF HESSE-CASSEL CONFISCATED OR ALIENATED BY NAPOLEON THE

FIRST.

DLXVIII. THE instance of the payments made to the first Napoleon by the debtors of the Prince of Hesse-Cassel furnished the last occasion, upon which these principles of International Law respecting the extinction of public debts by payment of them to a conqueror were invoked for practical application. The case of the purchasers of the (1) Debts, and of the (2) Domains of Hesse-Cassel during the interval between 1807 and 1813 has, from the importance of the principles involved in its discussion, taken its place among the causes célèbres of Public and International Law (a).

(a) The reader should consult Pfeiffer's two works :— 1. In wiefern sind Regierungshandlungen eines Zwischenherrschers für den rechtmässigen Regenten nach dessen Rückkehr verbindlich? (1819). 2. Das Recht der Kriegseroberung in Beziehung auf Staatscapitalien specialler Theil (Cassel, 1823)—both for the arguments and the accumulation of valuable authorities upon the general question; but upon the application to the particular case of Hesse-Cassel, the reader must remember that the author wrote at Cassel, and was Kurfürstlich Hessischer Oberappelationsrathe.” He wrote naturally under a strong, though, very likely, unconscious, bias for the Prince of Hesse-Cassel. See too Zachariah, Ueber die Verpflichtung zur Aufrechtshaltung der Regierung des Konigreichs Westphalen. Heidelberg, 1817.

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For a list of other writers, see note *, p. 484, vol. iv. of Rotteck and Welcker's Staats-Lexikon, tit. Domainenkäufer. The authors of this Lexicon remark that no German or Dutch writer or jurist out of the territory of Hesse-Cassel impugned the validity of the transfers and alienations made during the period of the government of the Bonapartes, i. c. Napoleon and Jerome.

DLXIX. First, as to the Debts. The war between France and Prussia in 1806 extended its consequences to the Elector of Hesse-Cassel (b), though he had professedly abstained from interfering in it.

In October, 1806, the French troops occupied the Electorate and drove out the Elector, upon the plea that his armed neutrality endangered the security of the French

army.

Hesse-Cassel remained under the military government of France until the end of the year 1807, when the greater portion of it, Hanau and Catzenelnbogen alone excepted, was incorporated into the newly-formed kingdom of Westphalia. This result was a consequence of the Peace of Tilsit (c), by which Russia and Prussia recognised Jerome Bonaparte as King of Westphalia, and agreed that the kingdom should be composed of certain provinces then in the de facto possession of Napoleon, and of others ceded by Prussia on the left bank of the Elbe. Napoleon retained for his own purposes the half of the allodial domains of the Elector, and a compact was entered into at Berlin (d), on the 22nd April, 1808, between Napoleon and Jerome, for the adjustment of the spoils of Hesse-Cassel, namely, with respect to the active debt (activ-capitalien) (e) of the Princes and Government of those provinces out of which the Westphalian kingdom was composed.

The King of Westphalia renounced all claim to the debts

Schweikart's lesser work, Napoleon und die Churhessischen Capitalschuldner. Königsberg, 1833.

Rotteck und Welcker, Staats-Lexikon, iv. "Domainenkäufer."
Conversations-Lexikon, iii. "Domainen."

Heffters, p. 326, and note 1.

(b) Koch, Hist. des Traités, t. iii. pp. 26, 41, 42.

1838, t. ii. pp. 492, 503, 511.

Pfeiffer, Das Recht der Kriegseroberung, s. 4, p. 237.

Ed. Bruxelles,

(c) De Martens, Suppl. au Rec. des Traités, t. iv. pp. 423, 434, 436, 491.

(d) De Martens, Suppl. t. v. p. 34.

(e) Pfeiffer, pp. 240, 241.

which were due from persons who were not the subjects of his kingdom, provided that these debts were paid to the Emperor of the French, to whom these provinces belonged by right of conquest, and were incorporated in his "domaine extraordinaire." Napoleon, on the other hand, declared that he yielded up all the debts of those debtors, whether of princes or noblemen, who were subjects of the King of Westphalia, or of private persons domiciled in his dominions, to the King of Westphalia, for his full and absolute possession and enjoyment.

DLXX. The legal title of the Emperor was set forth in this way: 66 Que par suite de la conquête de l'Électorat "de Hesse, l'Empereur a confisqué au profit de son domaine "extraordinaire les créances appartenantes, soit du ci-devant "Électeur de Hesse, soit aux états et provinces, dont il "avait été pris possession, et a déclaré, qu'il entendoit, "qu'aucun débiteur ne peut se libérer valablement qu'au "trésor du dit domaine."

The form of discharge (bonne et valable quittance) was: "Au moyen du payement stipulé et par le seul fait de sa "réalisation, le directeur des domaines cede, transporte, et "abandonne à N. N. tous les droits et actions appartenans “à S. M. I. sur l'obligation hypothécaire, consentie primi❝tivement au profit de l'ex-Électeur de Hesse, en vertu du "décret impérial du 4 Août, 1807;" or, " Au moyen du "dit payement le directeur des domaines assure la garantie "la plus formelle et la plus entière à N. N., contre toutes "recherches, demandes, et prétentions, soit de la part de "l'ex-Électeur de Hesse, soit de tout autre détenteur du titre original" (ƒ).

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DLXXI. Towards the close of the year 1813, after the power of Napoleon was broken by the battle of Leipsic, the son of the Elector of Hesse, having borne his part in that great contest, returned to his paternal dominions, and his

(f) Pfeiffer, p. 252.
Schweikart, p. 8.

father was confirmed in the possession of them by a treaty with the Allied Powers of 2nd December, 1813 (g), which contained a formal guarantee of his sovereignty; and this was further confirmed by the peace of Paris, 1814 (h).

DLXXII. Hesse-Cassel was a poor country, without foreign commerce, without facility of internal communication, without extraordinary fertility of soil; but the sovereign was a wealthy potentate. Absolute lord over his subjects, he had enriched himself, among other means, by selling their valour and their sinews to aid the wars of foreign nations. The gold of England had at different times largely contributed to the overflowing of his coffers. In the time of Napoleon he was one of the richest of the German princes. His money-for it must be borne in mind that it was his private property-was invested in loans and mortgages to the inhabitants of various States of the Continent.

When Napoleon possessed himself of the territories of Hesse-Cassel, he had comparatively little difficulty in compelling the subjects of his newly-acquired dominion to pay their debts to the prince into the exchequer of the Conqueror. This Napoleon could effect proprio motu. It was not so easy a task to possess himself of the debts due from foreign subjects to the dethroned prince. He did, however, in great measure, accomplish this object also. One case, the celebrity of which made it the theme of various legal treaties, will serve to illustrate both the fact and the law.

A certain Count von Hahn, the possessor of large landed estates, had borrowed money from the Prince of HesseCassel. The Count was a subject of Mecklenburg, and his estates were in that duchy. How was Napoleon to obtain possession of this portion of the Prince of Hesse-Cassel's property, which consisted in the mortgages on the Count's estate?

(g) Koch, iii. pp. 307, 308.
(k) Pfeiffer, pp. 246, 247.