length of time and duration of French possession furnished a rule that might apply to such cases, though not specifically distinguished in the terms of the order.

In the present case, I see no sufficient reason for an unfavorable hesitation of judgment. The vessel is, I think, proved to be going to Cadiz, the port of our allies, with a useful cargo on board, a cargo of military stores; there is nothing to contradict this destination, excepting a single document, a paper of mere form, granted by the constituted authorities, as they are called, at Montrico, in which a destination to St. Andero, then in French possession, is held out. It is impossible to attach much weight to that, because such a paper must have been accepted on board any vessel sailing from the port which this ship had quitted, as a cargo of such a description would not have been licensed to depart for Cadiz by those who alone had the authority to grant passports. All the witnesses depose to the destination to Cadiz; the letters on board are addressed to persons there, and the fact that this vessel stood towards the British privateer for protection, the moment her character was ascertained, strengthens the presumption. The evidence, therefore, of a destination to Cadiz, strongly preponderates; and, taking the fact to be so, what is this case, but that of subjects of a country with which a general amity had been proclaimed, serving the common cause of the allied countries, by carrying military stores to one of the strongholds occupied on behalf of that cause, from a port happening to be subject to the prevalence of French arms in its immediate neighborhood. Be the residence of the parties what it may, (for it does not very distinctly appear,) I can have no hesitation in restoring property so employed to persons manifesting such dispositions.

DONALDSON v. THOMPSON.

(Court of King's Bench, 1808. 1 Campbell's N. P. Rep. 429.)

This was an action on a policy of insurance on the American ship Maryland Mary, at and from Gibraltar to a market, with leave to call and land goods at two or more ports in the Mediterranean.

The ship having landed some goods at Malta, proceeded from thence on the 17th of May, 1807, with the rest of her cargo for Smyrna, but was the same day captured by a Russian privateer, and being afterwards carried into Corfu, was there condemned as lawful prize.

* * *

The condition of Corfu, in July, 1807, was described by a gentleman who had acted there as English consul. He stated, that at that time, there was a Russian garrison in Corfu, and the Russians had about 6,000 men in the different islands of the republic; that they had made Corfu a military station for four or five years, and that they continued in possession of it till the peace of Tilsit, when they deliv

ered it up to Bonaparte; but that, previously to that event, the flag of the Ionian Republic flew from the forts in the island, there was a port admiral appointed by the Ionian Republic, a consul from the Sublime Porte resided at Corfu, and the witness was recognised as English consul by the prince and senate of the Ionian Republic, who continued in their functions till the republican government was dissolved by the French.

Under these circumstances, the

LORD ELLENBOROUGH,1 Russians must be considered as visitors in Corfu, and not as sovereigns. While a government subsists as this did, we cannot look to the degree in which it might be overawed by a foreign force.

Verdict for the plaintiff.

In the ensuing term, Park applied to the court to set aside this verdict. * * A rule nisi was reluctantly granted; but, cause being shewn, it was discharged.

LORD ELLENBOROUGH. It is impossible to say that the government of the Ionian Republic was superseded, at a time when its institutions subsisted, and its supremacy was recognised. How, then, was Corfu a co-belligerent? Only because it endured a hostile aggression. Will any one contend that a government which is obliged to yield in any quarter to a superior force, becomes a co-belligerent with the power to which it yields?

THE GERASIMO.

(Privy Council, 1857. 11 Moore, P. C. 88.)

A ship under Wallachian colors, with a cargo of corn belonging to owners residing at Galatz, in Moldavia, was seized for breach of the Black Sea blockade, when coming out of the Sulina mouth of the Danube, then in a state of blockade. At the time of the shipment of the cargo the Russians held possession of Moldavia and Wallachia, but such holding was with the express intention of not changing the national character, or incorporating that country with Russia. From the decree of condemnation in the High Court of Admiralty an appeal was taken to the Privy Council.

The Right Hon. T. PEMBERTON LEIGH.

Upon the present appeal the first question is, whether the owners of the cargo, in regard to this claim, are to be considered as alien enemies; and for this purpose it will be necessary to examine carefully both the principles of law which are to govern the case, and the nature of the possession which the Russians held of Moldavia at the time of this shipment.

1 The statement of facts is abridged and parts of the opinions are omitted.

2 Short statement substituted for that of the report.

3 Only part of the opinion of the learned judge is given.

Upon the general principles of law applicable to this subject there can be no dispute. The national character of a trader is to be decided for the purposes of the trade, by the national character of the place in which it is carried on. If a war breaks out, a foreign merchant carrying on trade in a belligerent country has a reasonable time allowed him for transferring himself and his property to another country. If he does not avail himself of the opportunity, he is to be treated, for the purposes of the trade, as a subject of the power under whose dominion he carries it on, and, of course, as an enemy of those with whom that power is at war. Nothing can be more just than this principle; but the whole foundation of it is, that the country in which the merchant trades is enemy's country.

Now the question is, what are the circumstances necessary to convert friendly or neutral territory into enemy's territory? For this purpose, is it sufficient that the territory in question should be occupied by a hostile force, and subjected, during its occupation, to the control of the hostile power, so far as such power may think fit to exercise control; or is it necessary that, either by cession or conquest, or some other means, it should, either permanently or temporarily, be incorporated with, and form part of, the dominions of the invader at the time when the question of national character arises?

It appears to their lordships that the first proposition cannot be maintained. It is impossible for any judge, however able and learned, to have always present to his mind all the nice distinctions by which general rules are restricted; and their lordships are inclined to think that if the authorities which were cited and so ably commented upon at this bar had been laid before the judge of the court below, he would, perhaps, have qualified in some degree the doctrine attributed to him. in the judgment to which we have referred.

With respect to the meaning of the term "dominions of the enemy," and what is necessary to constitute dominion, Lord Stowell has in several cases expressed his opinion. In the case of The Fama, 5 Rob. 115, he lays it down that in order to complete the right of property, there must be both right to the thing and possession of it; both jus ad rem and jus in re. "This," he observes, "is the general law of property, and applies, I conceive, no less to the right of territory than to other rights. Even in newly discovered countries, when a title is meant to be established for the first time, some act of possession is usually done and proclaimed as a notification of the fact. In transfer, surely, when the former rights of others are to be superseded and extinguished, it cannot be less necessary that such a change should be indicated by some public acts, that all who are deeply interested in the event, as the inhabitants of such settlements, may be informed under whose dominion and under what laws they are to live."

The importance of this doctrine will appear when the facts with respect to the occupation of the principalities come to be examined. That the national character of a place is not changed by the mere cir

cumstance that it is in the possession and under the control of a hostile force, is a principle held to be of such importance that it was acted upon by the Lords of Appeal in 1808, in the St. Domingo cases of The Dart and Happy Couple, when the rule operated with extreme hardship. In the case of The Manilla, 1 Edw. 3, Lord Stowell gives the following account of those decisions: "Several parts of it (the island of St. Domingo) had been in the actual possession of insurgent negroes, who had detached them, as far as actual occupancy could do, from the mother country of France and its authority, and maintained, within those parts, at least, an independent government of their own. And although this new power had not been directly and formally recognized by any express treaty, the British government had shown a favorable disposition towards it on the ground of its common opposition to France, and seemed to tolerate an intercourse that carried with it a pacific and even friendly complexion. It was contended, therefore, that St. Domingo could not be considered as a colony of the enemy. The Court of Appeal, however, decided, though after long deliberation, and with much expressed reluctance, that nothing had been declared or done by the British government that could authorize a British tribunal to consider this island generally, or parts of it (notwithstanding a power hostile to France had established itself within it, to that degree of force, and with that kind of allowance from some other states), as being other than still a colony, or parts of a colony, of the enemy. There can be no doubt that the strict principle of that decision was correct."

On the other hand, when places in a friendly country have been seized by, and are in possession of the enemy, the same doctrine has been held. While Spain was in the occupation of France, and at war with Great Britain, the Spanish insurrection broke out, and the British government issued a proclamation that all hostilities against Spain should immediately cease. Great part of Spain, however, was still occupied by the French troops, and amongst others, the port of St. Andero. A ship called the Santa Anna was captured on a voyage, as it was alleged, to St. Andero, and Lord Stowell, 1 Edw. 182, observed: "Under these public declarations of the state, establishing this general peace and amity, I do not know that it would be in the power of the court to condemn Spanish property, though belonging to persons resident in those parts of Spain which are at the present moment under French control, except under such circumstances as would justify the confiscation of neutral property."

The same principle has been acted upon in the courts of common law. In the case of Donaldson v. Thompson, 1 Campb. 429, the Russian troops were in possession of Corfu and the other Ionian Islands, though the form of a republic was preserved, and it was contended that the islands must be considered as substantially part of the territory of the Russian Empire, if the Russian power was there dominant, and the supreme authority was in the Russian commander; or, if not,

that the republic must be considered as a co-belligerent with Russia against the Porte, since the emperor of Russia derived the same advantages, in a military point of view, from this occupation of the islands as if he had seized it hostilely, or the Ionian Republic had been his ally in the war he was carrying on. Both these propositions, however, were repudiated by Lord Ellenborough; and afterwards, on a motion to set aside the verdict by the Court of King's Bench, Lord Ellenborough observed: "Will any one contend that a government which is obliged to yield in any quarter to a superior force becomes a co-belligerent with the power to which it yields? It may as well be contended that neutral and belligerent mean the same thing." The same doctrine was afterwards laid down by the Court of King's Bench, in Hagedorn v. Bell, 1 Mau. & Sel. 450, in the case of a trade carried on with Hamburg, which had been for several years, and at the time was in the military occupation of the French.

The distinction between hostile occupation and possession clothed with a legal right by cession or conquest, or confirmed by length of time, is recognized by Lord Stowell in the case of The Bolletta, 1 Edw. 171. A question there arose whether certain property belonging to merchants at Zante, which had been captured by a British privateer, was to be considered as French or as Russian property; that question depending upon the national character of Zante at the time of the capture. Lord Stowell observes (page 173): "On the part of the crown it has been contended that the possession taken by the French was of a forcible and temporary nature, and that such a possession does not change the national character of the country until it is confirmed by a formal cession, or by long lapse of time. That may be true, when possession has been taken by force of arms and by violence; but this is not an occupation of that nature. France and Russia had settled their differences by the treaty of Tilsit, and the two countries being at peace with each other, it must be understood to have been a voluntary surrender of the territory on the part of Russia." On this ground he held the territory to have become French territory, remarking in a subsequent passage of his judgment that this was a cession by treaty, and not a hostile occupation by force of arms, liable to be lost again the next day.

These authorities, with the other cases cited at the bar, seem to establish the proposition, that the mere possession of a territory by an enemy's force does not of itself necessarily convert the territory so occupied into hostile territory, or its inhabitants into enemies.

*

The ground now suggested is that the Gerasimo was guilty of a breach of blockade in coming out of the Danube when the mouths of that river were in a state of notified blockade. It is singular that if this were the ground of capture, no notice whatever of the blockade should have been contained in the affidavit originally prepared for Cap