Page images
PDF
EPUB

that legislative provision should be made that statutes passed in this country, unless expressly declared to take effect from a particular period, should not take effect in a colony till promulgated there.

The Bight Hon. Sir G. Grey, Bart., A. E. Cockburn.

&c. &c. &c. Richard Bethell.

171

CHAPTER XVIII.
ON MISCELLANEOUS SUBJECTS (i).

(1.) Letter from the Lord Chancellor, Lord Thurlow, to Sir James Marriott, King's Advocate, on the necessity of Declaration of War "before Hostilities (2).

December 12, 1778. I need not explain to you the Attorney General's doubts: he has stated them to you, and it would be too long to discuss them in a billet.

Without enquiring in books whether a nation may commence hostilities before declaration of war, or may seize the property of another, or may sell or otherwise use it when seized; without resorting to the present practice of France, as being next at hand, for the justification of such proceeding, I believe, if it were well searched, these facts would be found—that orders had been given to the King's ships to make prize, letters of marque and reprisals issued, proclamations to offer such letters to the King's subjects, commissions to the Admiralty to issue them, commissions to the Admiralty to appoint judges for trying them, distribution among the captors, and perhaps more acts of the same kind than I can enumerate.

The proclamations of war since the Revolution are—

May 7, 1689 . . . France.

May 4, 1702 . . . France and Spain.

Dec. 16, 1718 . . . Spain.

(1) The Opinions in this chapter relate to various matters which could not properly be classed in any of the preceding chapters. I have therefore collected them together here.

(2) From a M. S. in the possession of Sir Travers Twiss, Queen's Advocate, which formerly belonged to Sir James Marriott.

Oct. 19, 1739 . . . Spain.

Mar. 29, 1744 . . . France.

May 17, 1756 . . . France.

Jan. 2, 1762 . . . Spain.

On July 10, 1739, letters of reprisal were granted, and I believe that period would furnish instances of all the kinds I have mentioned before.

These suggestions are hinted to you, rather to explain my own ideas than to assist you, who are much better acquainted than I am with them; but, as I know your diligence, perhaps you will be so good as to order enquiries in the Council Office, Admiralty, and Secretary of State's Office (i).

Thurlow.

(2.) Joint Opinion of the Queens Advocate, Sir John D. Harding, and the Attorney and Solicitor General, Sir A. E. Cock Burn and Sir Richard Bethell, tlwi Her Majesty's mere Declaration of War with a foreign Tower does not place the Ionian Bepublic in a state of war with that Power; and that it does not appear to be illegal for an Ionian to trade with a country with which Great Britain is at war.

Doctors' Commons, July 11, 1855. My Lord,—Wo are honoured with Mr. Merivale's letter of the 9th June last, stating that he was directed by your Lordship to transmit to us a copy of the shorthand writer's notes of the judgment recently pronounced in the Court of Admiralty in the case of the Leucade; that the Leucade was an Ionian vessel, sailing

(i) By the modern law of nations, no declaration or other formal notice to the enemy of the existence of war is necessary to legalize hostilities. The ancients were more punctilious, and, as is well known, heralds were employed to announce an impending war. As to Greece, see Paus. iv. 5, 8; Polyren. Strateg. iv. 7, 11; Osterniann, Dc Prsecon. Grmc. Cicero lays down the principle: Nullum helium esse justum nisi quod aut rebus rcpetilis geratur, aut denuntiatum ante sit et indicium: De Off. i. 11. The last example of a declaration of war by heralds at arms, according to the forms observed in the Middle Ages, was by France against Spain, in 1035: Wheaton, Internat. Law, s. 297. Woolsey sensibly remarks (Internal. Law, s. 115), that the disuse of these declarations does not grow out of an intention to take the enemy at unawares, but out of the publicity and circulation of intelligence peculiar to modern times.

under the Ionian flag, destined to Taganrog, a Russian port, which was not blockaded, laden with an innocent cargo; that the question raised was, whether this vessel, so sailing, laden and bound, was liable to capture, Great Britain and Russia being at war; that the points bearing upon this question, determined by the Court of Admiralty, were these, shortly stated:—

1st. That the declaration of the Ionian Senate, warning all protected subjects of the Queen of Great Britain belonging to the Ionian States to be guided by Her Majesty's declaration, dated London, 28th March, 1854, was not an act placing the Ionian States in the state of warfare with Russia.

2ndly. That with reference to the Treaty of Paris, 1815, which settled the national status of the Ionian Islands, those islands were declared to form a single, free, and independent State, and the Ionian flag acknowledged as the flag of a free and independent State; that consequently it was not the intention of the contracting Powers, or the construction of the treaty, that the Ionian islanders were to be taken either as British subjects, or as necessarily the allies of the Crown of Great Britain in any war, and particularly in a war with one of the Powers which guaranteed that very treaty.

3rdly. That, as in the Convention with the Netherlands in 1852, and in the treaty with Tuscany in December 1854, it was deemed necessary to mention expressly and distinctly the Ionian Islands; so, in order to affect Ionian islanders with any obligations or duties consequent upon a state of warfare between Great Britain and Russia, they should be specially named.

4thly. That no such special reference has been made in respect to the present war with Russia. That, incidentally, reference was made to the Order in Council of the 15th of April, 1854; and that the Court held that Ionian vessels were not "British vessels," within the terms of that order:—1st, under the municipal law; 2nd, under the British flag; 3rd, or as British-owned, though under neutral flag ;—and that reference was also made to the provision requiring that every Ionian vessel should be navigated under the pass of the Lord High Commissioner; that the final decision was that Ionian subjects had a right, in the existing state of things, to trade with Russia, and the ship and cargo were restored.

Mr. Merivale was pleased to refer us to the opinions given by us on the 19th of May, 1854, and on the 10th of May last, on the subject of the position of the Ionian States and Ionian subjects in the present war, and to annex a copy of a despatch from the Lord High Commissioner on the case of the Leucade, with the enclosure; that in the judgment in question, Dr. Lushington says: " I am strongly inclined to think that the necessary and inevitable consequence of such a condition (that created by the second article of the Treaty of Paris, November 5, 1815), is that the King of Great Britain has the right of making war and peace." And Mr. Merivale was further pleased to request that we would report to your Lordship our opinion whether we agree in the view here indicated by Dr. Lushington; and if we do so agree, in what manner should the exercise of this right be declared, so as legally to constitute a state of war (assuming, for the present, on the authority of the judgment, that such a state does not now exist) between the Ionian States and Russia, and by what authority publicly notified in the Ionian Islands? If, on the contrary, we are of opinion that any declaration, or other formal notification of war, should be made by the authorities of the Ionian States, then we are requested to advise in what manner, and by what authorities, regard being had to the language of the Ionian charter?

In obedience to your Lordship's commands, we have the honour to report that, although the questions put to us refer more immediately to the right of the Sovereign of Great Britain of making peace and war with reference to Ionia, and, if such right exists, to the mode in which it should be exercised; yet we infer, from the reference to the case of the Leucade, and the judgment of Dr. Lushington thereon, that it is desired that we should state our view as" to the liability of vessels belonging to Ionians, trading with an enemy of this country, to seizure and condemnation.

As regards the right of the Sovereign of Great Britain to prescribe to the Ionian State its course of political action, we fully adhere to the opinion contained in our report of May 19, 1854, as to the relation of the Ionian Islands to this country. We are, however, of opinion that a mere declaration of war by the Sovereign of Great Britain, will not have the effect of placing the Ionian Republic in a state of warfare with the foreign Power against which such declaration of war is made. It is necessary to

« PreviousContinue »