66 racter of land varies character and not of $160. Although the possession of landed estates The chain a belligerent country will not deprive a merchant, the prowho is a domiciled subject of a neutral Power, of his duce of personal neutral character, still the neutral character with the of the owner will not protect his property, which is of the in the course of transport from the belligerent coun- country try, as the immediate produce of his landed estates, the owners. from belligerent capture 2. The produce of a person's own plantation," says Lord Stowell", "in the colony of the enemy, though shipped in time of peace, is liable to be condemned as the property of the enemy, by reason that the proprietor has incorporated himself with the permanent interests of the Nation, as a holder of the soil, and is to be taken as a part of that country, in that particular transaction, independent of his own personal relations and occupation." It would appear from this decision. that the breaking out of war subsequently to the shipment of the goods was sufficient to impress upon them an Enemy-character at the time of their capture. So if the character of a country be varied under the operations of war, if it passes by conquest out of the possession of one Power into the possession of another Power, the produce of the soil shipped after the conquest will vary in respect of its neutral or Enemy character according to the character of the conquerors. Thus the island of Santa Cruz, a pos- Santa Cruz. session of the Crown of Denmark, was captured by the British forces. Mr. Bentzon, who was a proprietor of land in the island, and at the same time an officer of the Danish Government, withdrew from the island after its surrender, and took up his residence in Denmark. The property of the in 32 The Dree Gebroeders, 4 Ch. Rob. p. 233. 33 The Vrow Anna Catherina, 5 Ch. Rob. p. 168. The Phoenix, City of Hamburg. habitants not being disturbed by the conquerors, Mr. Bentzon still retained his estate in the island under the management of an agent, who shipped thirty hogsheads of sugar, the produce of the estate, on board a British ship to a commercial house in London, at the risk of Mr. Bentzon. On her passage the ship was captured by an American privateer, and her cargo was condemned in a Prize Court of the United States, as British property. Some doubt," observed Chief-Justice Marshall, "has been suggested whether Santa Cruz, while in the possession of Great Britain, could properly be considered as a British island. But for this doubt there can be no foundation, although acquisitions made during War are not considered as permanent, until confirmed by Treaty, yet to every commercial and belligerent purpose they are considered as part of the domain of the conqueror, so long as he retains the possession and government of them. The island of Santa Cruz after its capitulation remained a British island, until it was restored to Denmark." In this case all the power of the Civil Government had been absorbed by the conqueror, and the occupation of the island was politically complete. On the other hand, if a Neutral Country be in the military possession of a belligerent Power, but maintains her own civil Government proprio jure, the latter circumstance has been held sufficient to prevent the Country being considered as a conquered Country. Such was the purport of a decision in an English Court of Common Law in regard to the property of merchants resident in the City of Hamburg, which was at such time in the military occupation of French troops, but all the powers of civil government were administered in the same manner as they had for 34 Thirty Hogsheads of Sugar v. Bentzon, 9 Cranch, p. 238. Corfu. merly been before the arrival of the French. In this case, which came on before the Court of King's Bench at Westminster and involved a question of Maritime Insurance, the Court held, that as Great Britain had by an order in Council permitted the inhabitants of Hamburg to continue their commerce with Great Britain, notwithstanding the Military occupation of the City of Hamburg by French troops, the inhabitants of Hamburg were to be considered as retaining their character of neutral merchants. To a similar purport in reference to the island of Corfu, Island of in which, together with the other islands of the Ionian Republic, Russia had for four or five years maintained itself in military occupation, but during such time the flag of the Ionian Republic was displayed from the forts of the island, an Admiral appointed by the Ionian Republic presided over the port, a Consul from the Supreme Porte resided at Corfu, and an English Consul was recognised by the Prince and Senate of the Ionian Republic, Lord Ellenborough refused to recognise the island as part of the Russian territory, or its inhabitants as co-belligerents with the Russians against the Ottoman Porte. "It is impossible," he observed, "to say that the Government of the Ionian Republic (which had been recognised at the peace of Amiens as an independent State) was superseded at a time, when its institutions subsisted and its supremacy was recognised 36." 35 Cession. § 161. With regard to a country which has been Treaties of ceded under Treaty by a neutral Power to an enemy Power, the signature of the Treaty is not sufficient to impress an Enemy character on the country and its inhabitants. Actual delivery into the possession of 35 Hagerdon v. Bell, 1 Maule and Selwyn, p. 462. 36 Donaldson v. Thompson, 1 Campbell, p. 438. 37 the enemy is required to give complete effect to the Cession. This question was considered by Lord Stowell in a case where property was captured in the month of May 1803, in a voyage from the port of New Orleans to Havre de Grace, and was claimed on behalf of a merchant resident in New Orleans. Louisiana. Louisiana had been ceded by Spain to France under the treaty of San Ildefonso in 1796, but France had not actually taken possession of the country at the time when the property was captured. Lord Stowell held that " as it was a principle of jurisprudence that the actual possession of a thing must be united to the right of taking possession, before the Right of Property is complete, and as the practice of Nations had been in conformity with this principle, the country of Louisiana and its inhabitants continued to be under the dominion of Spain, until possession should have been actually taken by France. Where stipulations of Treaties for ceding particular countries are to be carried into execution, solemn instruments of Cession are drawn up, and adequate powers are formally given to the persons, by whom the actual delivery is to be made. In modern times, more especially, such a proceeding is become almost a matter of necessity with regard to the colonial establishments of the States of Europe in the New World. The Treaties by which they are effected may not be known to them for months after they are made. Many articles must remain executory only, and not executed, until carried into effect; and until that is done by some public act, the former sovereignty must remain." On the other hand, if a country has been delivered over voluntarily by one Power to another Power, which is in actual possession of 37 The Fama, 5 Ch. Rob. p. 113. Tilsit. it, although there may be no evidence forthcoming of a formal Treaty of Cession, the act of voluntary delivery will establish a legal presumption of a voluntary surrender of all title. Thus Russia had delivered up possession of the Seven Islands to France, and part of the French troops had been conveyed thither on board of and under the protection of Russian ships. No Treaty of Cession had been publicly announced, but France and Russia had settled their differences by the Treaty of Tilsit, and, the two Treaty of countries being at peace with one another, there could be no doubt that the surrender of the Seven Islands to France had been a voluntary act on the part of Russia. Under these circumstances Lord Stowell held that "the voluntary surrender of the islands on the part of Russia was an actual transfer to France, and consequently that the inhabitants of the islands had become French subjects." A cargo therefore which had been shipped on board a Danish ship, bound from Zante to Copenhagen, and which was documented as the property of merchants resident in the Seven Islands, and which had been The Ionian captured by an English privateer, after the Seven Islands had passed into the possession of France, was condemned as belonging to the subjects of France at the time of capture 38. Islands. racter of changed in § 162. There is a settled rule of the Prize Courts The chaof Great Britain and the United States, that property cannot be devested of its enemy-character in cannot be transitu on the High Seas, and that all property transitu on which has a hostile character impressed upon it at the inception of a voyage, remains liable to capture until its arrival at its destination 39. Thus a ship 38 The Bolletta, Edwards, p. 1 Gallison, p. 448, S. C. 8 Cranch, p. 354. The Vrow Mar39 The ship Frances and cargo, garetha, 1 Ch. Rob. p. 339. 173. the high seas. |