ly called to pronounce my opinion. The status of the subjects of the Ionian states must be governed by the treaty, not by the charter, so far as any question may arise affecting the right or interest of the powers, parties to that treaty.

I will now make a short summary of this treaty; it will show some of the anomalies. A single free and independent state, having the flag of a free and independent state, the military, naval, and diplomatic power all vested in the protecting state, the protected, not the subjects of the protector,-not British subjects, for that is perfectly clear. I apprehend that I must endeavour to give effect to all these main provisions of this treaty. I must maintain the quality of independence, save as modified by the treaty itself, and, by parity of reasoning, the independence of the flag, or rather the rights and attributes of the flag of an independent state.

Having carefully addressed myself to these considerations, I come to the question of whether I ought to condemn the ship and cargo proceeded against as the property of British subjects trading with the enemy, as the property of allies trading with the enemy, or as the property of subjects of the Ionian states being at war with Russia. There is no other state of things in which I conceive it to be possible to pronounce a decree of condemnation.

With respect to the first ground of condemnation, I am of opinion that this property cannot be condemned, for, according to all the authorities and all the principles on which the authorities are founded, no property can be condemned on that ground, unless it belong to British subjects, in the proper sense of the term-which the Ionians. are not. As to the second ground, I am of opinion I cannot condemn, because the Ionians are not allies in the war. No act whatsoever of the Ionian Government or of the protecting power has brought them within the fair meaning of that term. On the third ground I am of opinion that it does not follow of necessity that the Ionian subjects are at once, by a declaration of war by the Crown of Great Britain,— confined to a declaration of war by Great Britain only against another power, comprised within that declaration, and constituted enemies of that power. This being so, I know of no act of the protecting power to place the Ionians in that predicament. Great Britain may have authority to do so, as the protecting power is possessed of all the rights of treating with foreign nations, and of the right to place them in the category of enemies; but she has not thought proper to do so.

This observation, I think, is entitled to more weight from a consideration of the manner in which Great Britain has exercised the great powers secured to her by the treaty. I refer to the convention dated January, 1852, between the Queen and the King of the Netherlands. The terms of that treaty are:

"The inhabitants and vessels of the Ionian islands shall enjoy in the dominion of his Majesty the King of the Netherlands all the advantages which are guaranteed by the treaty of the 27th of October, 1837,

between Great Britain and the Netherlands, and by the convention additional to that treaty, signed in March, 1851, so soon and for as long as the Government of the Ionian islands shall grant to the inhabitants and vessels of the Netherlands the same advantages which were granted in these islands to the inhabitants and vessels of Great Britain." The commencement, too, of that treaty is not unworthy of observation. The Queen negotiates on behalf of the Ionian states as perfectly separate and distinct from the dominions of the Crown of Great Britain. It commences:

"Her Majesty the Queen of the United Kingdom of Great Britain and Ireland on the one part, and his Majesty the King of the Netherlands on the other part, being desirous of promoting the relations of commerce and navigation existing between the United States of the Ionian islands, which are under the protection of her Britannic Majesty and the kingdom of the Netherlands, have agreed to conclude a convention for that purpose, and have named as their respective plenipotentiaries," etc.

Nothing can be more manifest than this preamble to show that the Queen of Great Britain has negotiated for the Ionian islands as an entirely separate and distinct state.

Certain conclusions, therefore, appear to me to follow from a consideration of this treaty: First, it is evident that her Majesty ascribes to herself the right of making treaties on behalf of the Ionian states. Secondly, that no treaty between Great Britain with another state does include the Ionian islands, except specially named. I think that is perfectly evident, because otherwise there is no necessity for this treaty if it was included in the former. Thirdly, that this power, vested in the Crown of Great Britain, is limited as to the Ionian states in the same way that the power is limited with respect to the British territories themselves, namely, the Crown may contract, but as to all internal legislation necessary to carry such contracts into execution, it rests with the Government of the Ionian states to adopt the required measures as it would so in similar cases rest with the British Parliament. *

But confining myself to the consideration of the question whether, by the terms of the treaty, the subjects of the Ionian states, as a necessary consequence of the provisions of that treaty, became the enemies of the protecting power, at least I ought to consider from what cause such necessity springs. Again I must repeat the terms of the proposition, to prevent mistake. I am not putting, or attempting to put, bounds to the authority of Great Britain under this treaty. I am considering the import of the treaty only where Great Britain has not declared the exercise of her power. In this view of the case, is it at all immaterial, at all inconsistent with the powers of the treaty, at all injurious to the subjects of the protected states themselves, that whatever might be the relations of Great Britain towards Russia or any other country, peace with the Ionian states should continue, at

least until war was 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 breaking 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.

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 their 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 that if anomalous consequences, or such as can be deemed so, could dissolve treaties, I fear there would be little security for compacts amongst states. It often happens, unfortunately, from the want of care and caution, treaties are so framed, that when they come to be put in practice, consequences wholly unforeseen by the contracting parties may arise.

* * *

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 had not done it.

Because, in the absence of all such declaration or solemn act, in whatever form, I am of opinion that the Ionian subjects are not placed in any 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 be 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 go further.

*

4 In 1864, the Ionian Islands were annexed to Greece, and thereafter ceased to be, in law and in fact, a protected state.

For the history of the Ionian Islands, in so far as it is material to the present purpose, and for the steps by which they became incorporated with Greece, see Sarah Wambaugh, A Monograph on Plebiscites (1920), pp. 122132, 838-863.

The stock example of a personal union of states-that is to say, the union of two independent states in the person of one and the same sovereignwas that of Hanover. This state of affairs was produced by the accession of George Louis, Elector of Hanover, to the throne of Great Britain, as George I, in 1714, as by act of Parliament the succession was vested in the nearest Protestant heir of the royal house of Stuart. The personal union continued until the death of William IV. Queen Victoria succeeded him as British sovereign in 1837. His nephew, the Duke of Cumberland, succeeded him in his capacity of King of Hanover. Hanover, as such, ceased to be a kingdom by its conquest by Prussia, in 1866.

The union between Sweden and Norway, from 1815 to 1905, was more complicated; it being contended on the part of Sweden that it was a real union, and on the part of Norway that it was only a personal and voluntary union. The difficulty was settled in 1905 by the peaceable separation of the two countries, which thereafter were universally recognized as sovereign and independent in law as well as in fact. For this union, and the steps leading to and including the separation in 1905, see Sarah Wambaugh, Id. 165-169, 10511072.

For the status of the Transvaal Republic before its conquest and annexation by Great Britain in 1900, see In re Taylor (D. C.) 118 Fed. 196 (1902). For the status of Cuba during American occupation in consequence of the war with Spain, of 1898, till May 20, 1902, when it was evacuated and turned over to a government elected by its people, see Neely v. Henkel, 180 U. S. 109, 21 Sup. Ct. 302, 45 L. Ed. 448 (1901). For the relations of the United States and Cuba, see the treaty concluded on May 23, 1903, by these two republics, incorporating in its text the Platt Amendment, so called from Senator Platt, of Connecticut, who introduced it into the Senate as an amendment to the Army Appropriation Bill, although the amendment was devised by Elihu Root, then Secretary of War of the United States. See, also, Elihu Root, Military and Colonial Policy of the United States, pp. 185-188 (1916).

In the case of Rex v. The Earl of Crewe, Ex parte Sekgome, L. R. 2 K. B. 576, 619, 620 (1910), the court had occasion to consider the status of a protectorate in the narrower sense of the word.

In ordering a writ of habeas corpus on behalf of Sekgome, a native chieftain within the Batawana Protectorate, Lord Justice Kennedy said, in the course of his judgment:

"Upon the first question, namely, whether Sekgome is or is not a British subject, I think that the latter view is correct. Sekgome was born and has remained a member of a native African tribe called the Batawana tribe, dwelling in a region which has for some years (see proclamation of March 29, 1899) become officially entitled "The Batawana Native Reserve,' near Lake Ngami, within the Bechuanaland Protectorate. Now the features of protectorates differ greatly, and of this a comparison of the British protectorates of native principalities in India, the British protectorate of the Ionian Islands between 1815 and 1864, the protectorate of the Federated Malay States, and the Bechuanaland Protectorate as constituted by the Orders in Council and proclamation before mentioned, affords ample illustration. Other instances of protectorates will be found in Wheaton, International Law (4th Ed.) pp. 51 to 66. The one common element in protectorates is the prohibition

THE CHARKIEH.

(High Court of Admiralty, 1873. L. R. 4 Adm. & Ecc. 59.)

This was a cause instituted on behalf of the Netherlands Steamship Co., the owners of the steamship Batavier, and on behalf of the master, crew and passengers thereof against the screw steamship Charkieh and her freight, for damages arising out of a collision between the Batavier and the Charkieh in the river Thames in 1872.

As a bar to the action for damages resulting from the collision, it was maintained that the ship was the property of Ismail Pacha, Khedive of Egypt, the reigning sovereign of the state of Egypt and that the Charkieh was a public vessel of the government and semi-sovereign state of Egypt."

Sir ROBERT PHILLIMORE.

From these averments in the

pleadings, and these facts in the evidence, the following questions arise: 1. Is the international status of the Khedive that of sovereign prince of Egypt?

2. Is he entitled by virtue of that status to claim the exemption of this ship from the jurisdiction of this court?

3. If he be entitled to this privilege, has he waived or forfeited it? I proceed to consider these questions in their order, and first, as to the international status of His Highness the Khedive.

[After sketching the history of Egypt from Arabian conquest in 838 A. D. to the year 1833, the learned judge says:]

of all foreign relations except those permitted by the protecting state. Within a protectorate, the degree and the extent of the exercise by the protecting state of those sovereign powers which Sir Henry Maine has described (International Law, p. 58) as a bundle or collection of powers which may be separated one from another, may and in practice do vary considerably. In this Bechuanaland Protectorate every branch of such government as exists-administrative, executive, and judicial-has been created and is maintained by Great Britain. What the idea of a protectorate excludes, and the idea of annexation on the other hand would include, is that absolute ownership which was signified by the word 'dominium' in Roman law, and which, though perhaps not quite satisfactorily, is sometimes described as territorial sovereignty. The protected country remains in regard to the protecting state a foreign country; and, this being so, the inhabitants of a protectorate, whether native born or immigrant settlers, do not by virtue of the relationship between the protecting and the protected state become subjects of the protecting state. As Dr. Lushington said in regard to the inhabitants of the Ionian States, then under a British protectorate, in his judgment in The Ionian Ships, 2 Ecc. & Adm. 212, at page 226 (1855): '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.' A limited obedience the dwellers within a protectorate do owe, as a sort of equivalent for protection; and in the present case the Orders in Council relating to the Bechuanaland Protectorate and the proclamations of the High Commissioner made thereunder imply the duty of obedience on the part of Sekgome and other persons within the area of the protectorate to a practically unlimited extent."

5 Short statement substituted for that of the report, and parts of the opinion are omitted.