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observe that the relation between the Crown of Great Britain and the Ionian Republic is certainly anomalous in its character, and questions regarding it scarcely admit of being tried by the application of ordinary rules and principles. The right of appointing the supreme Governor of the States, the military occupation and possession of the islands, the command of the Ionian forces and the power of augmenting them in time of war, the right of conducting all the foreign relations of the Republic, and the power of convoking and dissolving the Senate, are the chief prerogative rights secured to and vested in the Crown of England by the Treaty of Paris and the charter of the Ionian States; and we think they necessarily involve the power of declaring war and making peace. On the other hand, the internal government of the country is in the hands of the Ionian Legislature and of the Senate, in the latter of which bodies (independently of the British Commissioner), the civil executive is vested. Thus the Ionian State is, as regards its foreign relations, dependent on this country, while with reference to its internal government it remains an independent State. Henco a double executive—the British Commissioner representing the State in its foreign relations and military government, the Senate conducting the civil affairs of the country.
It becomes necessary to bear in mind this distinction and division of powers, in considering the effect of what has hitherto been done with respect to the relation of Ionia towards Russia, or what it may be further necessary to do. It appears that all that has hitherto been done is that Her Majesty's proclamation of war against Russia, as Sovereign of Great Britain, has been transmitted to Ionia, and has there been published by the Senate for the guidance of Ionian subjects.
It appears to us that this is insufficient to place the Ionian State in a state of war with Russia. The Ionian Senate possessing no authority whatever with reference to the foreign relations of the country, no act of theirs can have any efficacy towards placing the subjects of Ionia in a state of warfare with Russia. A proclamation of war, or an act of which the purpose is to place Ionia in such a relation, should proceed either immediately from the Sovereign of Great Britain as the protecting Power, or from the Lord High Commissioner as the representative of the Sovereign in Ionia with reference to the external relations of the country. It remains to be considered whether a mere declaration of war by the Sovereign of Great Britain, as such, produces any and what effect with reference to the inhabitants of the Ionian Islands. 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. We have no doubt that, after Her Majesty's declaration of war, an Ionian subject entering into the service of Russia, or otherwise assisting the enemy, would be guilty of high treason, and liable to be punished accordingly. This, however, does not lead to the conclusion that Ionian subjects are prohibited from trading with an enemy of this country. The criminal code to which we have referred, is minute in its enumeration of the particular acts which amount to an adhering to the foreign enemy. It does not include amongst them the trading with the enemy: and although by the general laws of this and other countries, the act of trading with an enemy, though not amounting to treason, is nevertheless prohibited, as incompatible with the duties of the subject during war; yet as the relation of the Ionians to Her Majesty is not that of subjects, we think it more than doubtful whether such a principle would apply to them as flowing by implication from the provisions of the criminal code to which we have above referred. No doubt, if by the exercise of the power vested in the Sovereign of determining the foreign relations of the Ionian State, the latter should be placed in a state of warfare with Russia, the right of trading with the enemy would thenceforth be determined; but it must be borne in mind that by the Order in Council of the 15th of April, 1854, liberty has been given even to British subjects to trade with the enemy, provided such trade be not carried on in British vessels: under such circumstances, it would probably be thought right (if Ionia should be placed in a state of war with Russia) to extend a similar permission to Ionian subjects.
With regard to the case of the Leucade, upon which the question as to the relation of Ionian subjects to this country has more immediately arisen, we are of opinion that that vessel was not properly subject to seizure and condemnation—firstly, because, for the reasons we have above detailed, we do not consider Ionians as British subjects, or as prohibited, uuder existing circumstances, from trading with the enemy; secondly, because, if Ionians were to be considered as British subjects, and prohibited from so trading, they would be entitled to the benefit of the concession to the British subjects of the right to trade with the enemy otherwise than in British ships; and we are clearly of opinion that in no sense can an Ionian vessel be held to be a British vessel. Therefore, although we cannot bring ourselves to concur in much of the reasoning in the judgment of the learned Judge of the Admiralty Court in the recent case of the Leucade, we find ourselves compelled to concur in the conclusion at which he has arrived, that the ship of an Ionian subject trading with Russia, but without breaking blockade, is not, under existing circumstances, liable to seizure and condemnation.
J. D. Harding. The Right Hon. Lord J. Bussell, M.P., A. E. Cockburn.
&C. &C. &C. ElCHARD BETHEll.
(3.) Joint Opinion of the same Law Officers, that the Queen can, by her Declaration of War, place the Ionian Republic in a state of hostility towards another country.
Temple, August 21, 1855.
Sir,—We were favoured with your letter of the 23rd ultimo, stating you were directed by Lord John Russell to refer us to the following passage in our report of the 11th July on the case of the Leucade:—
"A proclamation of war, or an act of which the purpose is to place Ionia in such a relation (i.e., of warfare with Russia), should proceed either immediately from the Sovereign of Great Britain as the protecting Power, or from the Lord High Commissioner as the representative of the Sovereign in Ionia with reference to the external relations of the country."
You also stated you were to request that we would inform Lord John Russell, whether it is our intention by this passage to affirm that the Queen, as protecting Power, has the right to constitute by her own act this state of hostility?
And whether, if such is our opinion, the annexed draft of a declaration (with any amendment we might suggest) appears to us sufficient to constitute such a state? Or, in the event of our being of opinion that the Lord High Commissioner should be instructed to issue a declaration, what is the form we should suggest for this purpose?
In obedience to his Lordship's commands, we have the honour to report that it was our intention, by the recited passage of our former report, to affirm that the Queen, as protecting Power of the Ionian States, has the right to constitute by her own act a state of hostility between that country and any other State.
The proposed draft of a declaration, with the amendments we have suggested (and we have thought it right to omit all the recitals, as uncalled for and inexpedient), will, in our opinion, be sufficient to constitute such a state of hostility.
But we think it advisable that the Lord High Commissioner should issue a proclamation in the islands, setting forth Her Majesty's declaration, and calling upon all Ionian subjects to take notice thereof, and to demean themselves accordingly.
J. D. Harding.
Herman Merivale, Esq., A. E. Cockburn.
&c. &c. &c. Richard Bethell.
(4.) On the Right of War, and Booty, and Prize (i).
It is certain that the right of war is lodged in the Sovereign. Wars are undertaken either to recover the rights of private subjects, which the enemy wilfully refuseth to pay, or upon some Ipublic cause. In the first case, the principal thing to be taken care of is, that the persons upon whose wrongs the war began may be restored to their rights of the overplus in this instance; and in wars that begin from a public cause, all that is taken is acquired to the Sovereign, whatever hands it first fell into—whether the mercenary soldiers, or subjects obliged to military service without receiving pay. But because war lies heavy upon the subjects, whether they are only taxed to support it, or are obliged to serve in it themselves, it is no more than a good prince that had a love for his subjects would yield to, that the subject should be allowed, in
(i) From a M. S. in the possession of Sir Travers Twiss, Queen's Advocate, which formerly belonged to Sir James Marriott. No date. Most probably the opinion of Sir James Marriott.
return, to make some advantage by the war—either by assigning them pay from the public when they go upon any expedition, or by sharing the booty among them, or giving everyone leave to keep the plunder he gets himself, or else, by giving the booty to the public, tef ease the subjects of taxes for the future. Mercenary soldiers have no right to anything above their pay. What is given them above that is matter of bounty or reward to the good service, or encouragement to their valour. As to Grotius's distinction of acts of hostility in public and private acts, it may be very justly questioned whether everything taken in war by private hostilities, or by the bravery of private subjects, that have no commission, belongeth to them that take it. For this is also part of the right of war, to appoint what persons are to act in a hostile manner against the enemy, and no other. Consequently, no private person hath power to make devastations in an enemy's country, or to carry off spoil, or plunder, without permission from his Sovereign. And the Sovereign is to determine how far private men, when they are permitted, are to use that liberty of plunder, and whether they are to be sole proprietors in the booty, or only to have a part of it. For to be a soldier, and to act offensively in a hostile manner, a man must be commissioned by public authority: and therefore Cato used to say, "that no man has any right to fight an enemy that was not a soldier."
(5.) Case and Opinion of the Attorney General, Sir Charles Pratt, as to the Grant of a Marriage Licence (i). 176'0. Case.—If application is made to an ecclesiastical Judge, duly authorized to grant marriage licences, for a licence to solemnize a marriage between parties of full age and free condition, who reside within his jurisdiction, and have complied with every requisite prescribed by the Act for the better preventing clandestine marriages, and with all the forms prescribed by the canons—is the Judge compellable to grant such licence as a matter of right, or is it a matter of favour, which of his own mere will he arbitrarily can refuse; or has the subject a right to a mandamus, or any other and what remedy?
Opinion.—I am of opinion that this licence is not a matter of (i) From the same M. S.