logy (f) of this jurisprudence failed in a material point. The law in question applied to property 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 recognised 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 be a manifest injustice to declare on that account "contracts, had between individuals under the former West

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phalian Government, invalid, which contracts had been "sanctioned by the Government which the Peace of Tilsit

(f) As to the use of the Roman Law in deciding international questions, vide antè, vol. i. s. xl.

Indeed the analogy of this law is adverse to the position; it recognises 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 antè, vol. ii. pt. v. c. iv.

(h) Rotteck, Staats-Lexikon, pp. 488, 490.

"had recognised." 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 cognisance 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 (7).

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

(i) Rotteck, Staats-Lexikon, p. 491.

(k) Vide antè, vol. i. pt. i. c. iv.

(1) Staats-Lexikon, iv. p. 521.

(m) Ib. p. 483.

(n) Koch says (Traités de Pair) Hanover and Hesse only, t. iii. p. 364 (Brussels ed. 1838).

Sovereigns 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 recognised the usurpation of Napoleon, and his authority to alienate the domains of countries which he had conquered. Therefore, he says, the Allies did not legalise 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 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.

(0) Rotteck, Staats-Lexikon, p. 364.

CHAPTER VII.

POSTLIMINIUM.—DECISIONS IN ENGLISH COURTS OF

JUSTICE.

DLXXV. THE question as to the right to confiscate the Public Debts 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 authority 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 naturalised 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 holden 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 Den

(a) Vide antè, p. 146.

See, too, Story's Conflict of Law, ss. 334, 348, 351.

(b) Vide antè, pp. 145-7.

(c) Wolff v. Oxholm, 6 Maule and Selwyn's Reports, p. 100.

mark and England were at peace with each 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, monies, and money's 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 Sequestration Commissioners were informed of the debt in 1807, the defendant did not pay the debt till 1812. Yet the Court, in fact, decided upon the