Every vessel under the Ionian flag must be provided with a pass, signed by the Lord High Admiral, or she will not be considered as navigating according to law.(a) The protecting power, if it chooses to exercise it, has ample means of preventing any injurious consequences arising to itself, and that without resorting to any violent construction of the treaty. declared on their part by Great Britain? Are there not many instances in which Great Britain herself might wish not to involve the Ionian States in a warfare in which she herself is engaged, but in which they have no interest? But, above all, I must repeat what I have so often said before in substance-could it have been the intention of the contracting powers, evinced by the terms of the treaty, that a state of warfare should necessarily follow upon hostilities break-in Council of the 15th of April. (b) I will ing out between themselves and others, without giving, in the terms of the proposition, even an option to the protecting powers to leave the Ionian States at peace ? To make the extension of all wars to the Ionian States inevitable would be to deprive the protecting power of her discretion to leave them at peace. I have not hitherto adverted to the Order now consider what bearing it has on the question before me. By this Order in Council it is declared all the subjects of Her Majesty, and all the subjects of any friendly or neutral state, may, notwithstanding the present hostilities, freely trade with any ports or places not in a state of blockade, contraband and carrying despatches excepted. Nothing can be clearer or more comprehensive than this declaration. There is only one exception, viz.— "Except that no British vessel shall, under any circumstances whatsoever, either under or by virtue of this Order, or otherwise, be permitted to enter any port or place in the possession or occupation of Her Majesty's enemies." The single question on this occasion is whether a vessel under the Ionian flag is a British vessel within the meaning of this declaration. Whether this was a casus omissus, or what were the intentions of Her Majesty's Government, save as expressed in this declaration, I am not called to inquire. upon Then what is the definition or true meaning of the words "British ves First, all the vessels properly so called according to our municipal law. Now, I am told that anomalous consequences must follow, if the Ionian States are allowed to maintain a neutral character. I admit it must be so; but will such consequences be more repugnant to the treaty than to hold that a guaranteed free and independent state is involved necessarily in war by the act of another state, contrary to its own interests, and without the least regard to them? And that, not by the act, the deliberate act, of the protecting power, but merely by an inevitable inference? But, again, are anomalous consequences resulting from a treaty a reason for abrogating its main provisions? For construing such provisions, if possible, so as not to produce such consequences, no doubt there is a very strong reason; for abrogating them, none. Though all contracting powers may be bound by what they have done, yet surely it would be difficult to contend that such a construction as this must be taken as actually foreseen, and intentionally provided for, too, by the stipulations of the treaty to the effect of entailing on the Ionian States any war in which Great Britain may be involved. But to this I ought to add, if anomalous consequences, or such as can be deemed so, could dissolve treaties, I fear there would be little security for compacts among states. It often happens, unfortunately, that I can affix no other meaning to these from want of care and caution treaties are particular words. Within which of these so framed that when they come to be put vessel? Not in the first or second, clearly, three meanings can I place an Ionian in practice consequences wholly unforeseen by the contracting parties may arise. without utterly disregarding and discardBut in this case are the anomalies so fear-ing the plainest expression of the treaty. I ful, and are the consequences so detrimental to the protecting power, as have been supposed? Trade by the enemy to the Ionian Islands there can be none, without the consent of the protecting power, for Great Britain is in possession of all the fortresses and all the ports. What trade can be carried on by Ionian vessels? Secondly, all vessels under the British flag, though perhaps not strictly entitled thereto, because, by the Law of Nations, the carrying of the British flag stamps on them, as to other nations, the British national character. And thirdly such words may mean, though this is a much more doubtful point, vessels under neutral flags but owned by British subjects. never can call the Ionian flag the British flag. The words of the treaty are the acknowledgment of the flag of the Ionian Islands as the flag of a free and indepen (a) See above, p. 438. (b) State Papers, vol. 46, p. 49, and below, App. E, p. 1226. dent state. If words have any meaning, these words do not mean British flag. Then, lastly, can I say that this vessel under the Ionian flag, and owned by the inhabitants of these states, was owned by British subjects? I am of opinion that by no rational mode of construction can I come to such a conclusion; I think this Order in Council, judging from its terms, does not contemplate the case of the inhabitants of the Ionian Islands at all. I think they are not strictly British subjects either in the strict sense of the terms or any other within the purview of this Order. I have, therefore, come to the conclusion that an Ionian vessel is not by virtue of this Order prohibited from entering a Russian port not blockaded. ground that such property is taken adhering to the enemy; and therefore the property, being bound not so to adhere, is considered, pro hac vice, committing an illegal act. Such property belonging to a neutral is not adhering to the enemy in the sense which is meant in this judgment, for he has no enemies to adhere to. The prohibition is to British subjects only, or to allies in the war. Now, Lord Stowell, in the case of The Hoop, especially relied on the authority of Bynkershoek, (a) and upon a greater authority he could not have placed his dependence; and every word in the passages quoted, and in the whole treatise, relates to subditi-to subjects, and to subjects only. That is the expression used in Bynkershoek, be--to subjects, and subjects only. There is, however, another question hind. Though the Order does not prohibit, does it permit and sanction an Ionian vessel going to a Russian port? The solution of this question will depend upon other considerations. Is an Ionian vessel a vessel under a neutral or friendly flag? Is an Ionian a subject of a neutral or a friendly state? If these questions can be answered in the affirmative, then the Order in Council would operate in this case; if not, then I apprehend, according to the view I have already taken, the case must be governed by the law, independently of the Order in Council. I have brought forward this proposition because I am not willing to pass by any matter of importance discussed at the bar; but if I should be of opinion that the claimants are entitled to restitution independently of this Order in Council, it would not be necessary to determine whether they were included in the provisions of it; and it may be that the very grounds on which I hold the claimants entitled to restitution would bring them within the operations of the Order in Council. I shall, if there be no other merits affecting the question, and if the case is to depend solely on the point argued before me, restore this ship on the following grounds: First, because it is not the property of British subjects in any sense of the term; consequently it cannot be, as the property of a British subject, illegally engaged in trade with Russia on the ground of the war with Russia. Now, it may be, as to this head, not unimportant to consider on what ground the property of the British merchant trading with the enemy of Great Britain during war is condemned. We have all the law in the case of The Hoop, (a) and in The Nelly cited in The Hoop. It is upon the (a) 1 C. Rob. 196. So in the numerous cases cited by Lord Stowell, the whole inquiry is whether the property claimed was the property of British subjects-the subjects of Great Britain in the sense in which the term is used in Courts of Prize-namely, persons carrying on trade in territories subject to the British Crown, and consequently owing at least a temporary allegiance to the Crown of Great Britain. Do, then, the subjects of the Ionian States stand in eadem conditione? It is admitted on all hands that they are not British subjects in the proper sense of the term; that they have not their domicile in British territories; for to make such an averment would set the whole treaty at naught; it would be to make a mockery of the most stringent stipulations contained in that treaty. Diplomatic authorities may do so, a court of justice cannot. Again, the Ionian subjects do not participate with British subjects in the advantages of commercial intercourse in virtue of this treaty. Are they to suffer the inconveniences and have none of the benefits? Do they owe any allegiance to the Crown of Great Britain which they violate by such a trade? Perhaps this is the nicest and most difficult point, but I am of opinion that allegiance, in the proper sense of the term, undoubtedly they do not owe; because allegiance exists only between the sovereign and his subjects, properly so called, which they are not. (b) A limited obedience, according to the treaty, they do owe, and that by the terms of the treaty itself, as a sort of equivalent for protection; and there may be cases in (a) Quæstiones Juris Publici, Bk. 1. c. 3. (b) "By the Criminal Code of the Ionian State it is declared to be high treason in an Ionian subject to adhere to the enemies of the Ionian State or of the protecting Power."-Law Officers' Opinion, below, App. F, p. 1229. which it might be competent to Great Britain to declare that abstinence from trade with her enemy is due for such protection. But is it to be enforced without such a declaration ? I think not. But again, is this presumed illegality of trade a principle to be enforced beyond all precedent for precedent I can find none beyond what it has hitherto been carried by any Court in any country, at any time, in any decided case? On what ground is it to be based? Not of advantage to the Ionian Islands, for they have no interest in the quarrel, while, without a possibility of benefit to themselves, they may be deprived of a lucrative trade, and that, too, without any formal act done by the protecting power. I have mentioned at least some of the reasons which have induced me to come to that conclusion. I shall restore, because the property is not the property of allies in the war, for neither by the treaty nor by the Law of Nations can I impose on the subjects of the Ionian States that character. Again, I shall restore, because, if Great Britain had the right by treaty of declaring war between the Ionian Islands and Russia, she has not done it; and because in the absence of any such declaration or solemn act in whatever form, I am of opinion that the Ionian subjects are not placed in a state of war. Because I hold it to be the duty of every Court professing to administer the Law of Nations to carry into effect and operation the plainest terms of a treaty, though the consequences may not have been perceived. Various anomalous results may follow, but they are infinitely less important in their consequences than if a court of justice should take upon itself to disregard a solemn compact carefully expressed. I hardly need further. go If, therefore, the only question as to the ship and cargo should be the title of subjects of the Ionian states to claim ships and cargoes, their property, engaged in trade with Russia, I must hold myself bound to restore. I wish to add that this judgment is founded on the conviction that I am bound to give effect to the Treaty of Paris, and that, notwithstanding the consequences I have stated, I am equally bound to carry out its leading provisions. This only goes to the general question. In a case of the great importance of this, I think it would be desirable, Queen's Advocate, to give an opportunity for considering it. Queen's Advocate: If the Court pleases. Dr. LUSHINGTON: Because it may be thought right to take it to the Superior Court. Dr. Addams: I submit to the Court that the claimant is entitled to costs and damages, on the authority of The Ostsee.(a) Dr. LUSHINGTON: I cannot give the costs at this stage of the proceedings. When I have heard the whole case out, if you claim costs, I shall hear your argument, and then, of course, I shall be governed by that decision-in the Privy Councilby the principles there laid down. That must be my guide in future; but I beg it to be understood that I shall expect an argument on the point of the application of the principles of that case to the present. Afterwards Dr. LUSHINGTON held that, in view of the doubtful status of the Ionian Islands, the captors had not acted without reasonable and probable cause, and were not liable to be condemned in costs and damages. See The Leucade.(b) An appeal from the decision here reported was entered, but was not proceeded with owing to the opinion given by the Law Officers (below, App. F, p. 1229) that the vessel had been rightly restored. It was ultimately decided to issue a declaration placing the Ionian Islands in a state of war with Russia, and a draft Order in Council was prepared for that purpose in January 1856, but further action suspended in view of the prospects of peace.(c) 174. was (a) 2 Ecc. & Adm. 170; Spinks' Prize Cases, (b) 2 Ecc. & Adnı. 228; Spinks' Prize Cases, 217. (c) Colonial Office Papers, Ionian Islands, In 1858 Mr. Gladstone was vols. 155, 156. appointed to proceed to the Ionian Islands as Lord High Commissioner Extraordinary. See McCarthy, "History of Our Own Times," vol. 3, PP. 192-200; Parl. l'apers, 1861, c. 2891, vol. 57, p.17. In 1863, during Lord Palmerston's administration, it was announced in the Queen's Speech that Great Britain was prepared to renounce her protectorate, and to consent to the annexation of the islands to Greece, if the Legislative Assembly of the islands should so desire. See the debate on this announcement, Hans. vol. 169, H.L. at pp. 8, &c., H.C. at pp. 66, &c; and Earl Russell's despatch of June 10th, 1863, Parl. Papers, 1863, c. 3185, vol. 74, p. 387. The Legislative Assembly unanimously petitioned for annexation to Greece. By the Treaty of London, of November 14th, 1863, between Great Britain, Austria, France, Prussia, and Russia, Great Britain renounced her protectorate over the Ionian Islands, and the other contracting Powers recognised such renunciation and the union of the islands with the Hellenic Kingdom. By Article VI. of the Treaty, France, Great Britain and Russia, in their character of guaranteeing Powers of the Kingdom of Greece, reserved the right to conclude a treaty with the Hellenic Government (Hertslet, Treaties, vol. 11, p. 1107; State Papers, vol. 53, p. 19; Parl. Papers, 1864, c. 3323, vol. 66, p. 135). By the MATERIALS MADE USE OF.-For the report for the judgment the report in Spinks, of the argument The Times newspaper; Prize Cases, 193, and 2 Ecc. & Adm. 212. Treaty of London of March 29th, 1864, between Great Britain, France and Russia, on the one part, and the King of the Hellenes on the other part, Great Britain, France and Russia, as signatories of the Convention of London of 7th May, 1832 (Hertslet, Treaties, vol. 4, p. 313), guaranteeing the independence of the Greek Kingdom, recognised the union of the Ionian Islands to Greece, and declared that Greece, including the Ionian Islands, should form a monarchical, constitutional, and independent state under the guarantee of the three Courts. By Article VI., the same Powers declared, with the assent of Austria and Prussia (Protocol of January 25th, 1864, Hertslet, Treaties, vol. 12, p. 525), that the islands of Corfu and Paxo should enjoy the advantage of perpetual neutrality. Hertslet, Treaties, vol. 12, p. 515; State Papers, vol. 54, p. 11, and see pp. 34, 38; Parl. Papers, 1864, c. 3247, vol. 66, p. 117; see also Correspondence respecting the cessation of the British Protectorate over the Ionian Islands, 1864, c. 3373, vol. 66, p. 145; and Consular Reports as to the state of the Islands after the withdrawal of British Protection, 1867, c. 3827. WENSLEYDALE PEERAGE CASE. PROCEEDINGS IN THE HOUSE OF LORDS AND BEFORE THE COMMITTEE FOR PRIVILEGES AS TO THE PATENT PURPORTING TO CREATE BARON PARKE A BARON FOR LIFE, WITH A SEAT IN PARLIAMENT, February 7th-25th, 1856. (Reported in 5 H.L. 958; Special Report by Macqueen; and Hansard, vol. 140.) In January 1856, Letters Patent passed the Great Seal creating the Right Hon. Sir James Parke, Knight, Baron Wensleydale of Wensleydale "for and during the term of his natural life,” and granting that he should be treated and reputed as a baron, and "have, hold, and possess a seat, place, and voice in the parliaments and public assemblies and councils" of the Crown in the United Kingdom "amongst other barons, as a baron of Parliament and public assemblies and councils," and enjoy all the rights, privileges, etc., to the degree of a baron belonging and which other barons of the United Kingdom have heretofore used and enjoyed, &c. Reference by the House of Lords to Committee for Privileges of patent creating baron for life with seat in Parliament. A copy of the patent having been laid on the table of the House of Lords, Lord LYNDHURST moved that it be referred to the Committee for Privileges to examine and consider the copy of the Letters Patent purporting to create the Right Hon. Sir James Parke a Baron of the United Kingdom for life, and to report thereon to the House. Content, 138. Not-Content, 105. Resolved in the affirmative. Rejection of motion to consult the Judges. On a later day it was moved to put the following questions to the Judges: (1) Is it in the power of the Crown to create by patent the dignity of a Baron of the United Kingdom for life? (2) What rights and privileges does such a grant confer? Content, 111. Not-Content, 142. Resolved in the negative. Report of Committee against such patent conferring seat in Parliament confirmed by the House of Lords. In the Committee for Privileges, Lord LYNDHURST moved to report that neither the said Letters Patent, nor the said Letters Patent with the usual Writ of Summons issued in pursuance thereof, can entitle the grantee therein named to sit and vote in Parliament.(1) Earl GREY moved an amendment. (2) Resolved that the motion be carried and the amendment rejected. Content, 92. Not-Content, 57. The Committee having reported, it was resolved and adjudged (3) accordingly by the House of Lords without a division. (1) In the Berkeley Peerage claim, 8 H.L. 79, Lord Campbell, L.C., said, "It is now fully settled that the law of the Peerage of England depends entirely on usage, both as to the power of the Crown, and as to any claim that may be made by a subject. It has been solemnly decided by your lordships, in the exercise of your unquestionable jurisdiction, that the Crown cannot create a peerage for life with the right to sit in this House, and the ratio decidendi was, that no instance could be adduced of a peer sitting in this House in right of a peerage granted for life only." See also Lord Hatherley in the Buckhurst Peerage, 2 App. Ca. at p. 36. (2) See below, p. 678. (3) See below, p. 716. "Whatever matter arises concerning either House of Parliament ought to be examined, discussed, and adjudged in that House to which it relates and not elsewhere." 1 Bla. Com. 163, citing 4 Inst. 15. And see Bradlaugh v. Gossett, 12 Q.B.D. 271. |