THE ELECTOR OF HESSE CASSEL.

(Phillimore's International Law, III., 841.)

Hesse Cassel was conquered by the first Napoleon in 1806, and remained for about a year under his immediate control; when it was annexed to the new kingdom of Westphalia, and formed a part of that kingdom till after the battle of Leipzig, in 1813.

The question was whether debts owing to the Elector were validly discharged by a payment to Napoleon and receiving from him a quittance in full.

The legal title of the Emperor was set forth as follows:"Que par suite de la conquête de l'Electorat de Hesse, l'Empereur a confisqué au profit de son domaine extraordinaire les créances appartenantes, soit au ci-divant Electeur de Hesse, soit aux états et provinces, dont il avait été pris possession, et a déclaré, qu'il entendait, qu'aucun débiteur ne pût se libérer valablement qu'au trésor dudit domaine."

One of the debtors of the Elector was Count von Hahn, a subject of Mecklenburg, and having large estates in that duchy. The mortgage of these estates held by the Elector of Hesse, was duly registered in the proper office in Mecklenburg.

The Duke of Mecklenburg, at the instance of Napoleon, issued an order (circular Rescript), which, after reciting that Napoleon, being possessed of the sovereignty of Hesse Cassel, was possessed, as an accessory to the principal, of the debts due to that sovereign, directed the Court of Registration to record as extinguished those mortgages in favor of Hesse Cassel, for which a particular discharge or receipt. had been given by Napoleon, or by his appointee for that purpose.

The Rescript was dated the 15th of June, 1810. It appears that it was obeyed, but that a particular minute of the circumstance of the extinguishment of the mortgage was also recorded, so as in some measure to leave open the question of the lawfulness of the discharge.

The affairs of the Count became embarrassed, and after his death creditors claimed his property; among them was the restored Prince of Hesse Cassel. The actor communis (or official assignee) of the creditors brought the question into court.

The Mecklenburg court of justice at Güstrow first entertained the question. The Prince denied both the validity of the discharge and the legality of the Mecklenburg order of 1810, and asserted that Na

poleon possessed himself of the money in the character of a robber, and not of a conqueror.

This matter was then remitted to the Prussian University of Breslau. The decision of this tribunal (May 29, 1824) was in substance that the Prince might recover that part of the debt which had not been actually paid in money to Napoleon, but no more. It had happened that in many cases Napoleon had remitted, no doubt in order to induce payment, a considerable portion of the original debt, giving, however, a discharge from the whole.

Both parties, being dissatisfied with this judgment, appealed to the Holstein University of Kiel, which, however, confirmed, with some difference as to the costs, the sentence (March 24, 1831). But from this sentence the court itself sanctioned an appeal “ad impartiales exteras," that is, to another German University.

This learned body (name not given) delivered at great length the reasons of their judgment.

They rightly said that the real question was, whether Napoleon had, or had not, become the true creditor of the Hesse Cassel funds. They drew a broad distinction between the validity of acts done by a mere transient conqueror and acts done by him after the kingdom had been wholly subdued, and the subjects had either expressly, or by necessary implication, accepted him as their ruler.

In the former case the conqueror's right was confined to the effects of his private acts, to the occupatio bellica, and required actual seizure and possession for its valid exercise.

In the latter case the rights and title of the conqueror had been ratified by the public act of the state. As Napoleon's right and title was of the latter kind, the fact that these funds were the private property of the Prince, and not the public property of the state, became of no importance. They rejected the consideration of the justice or injustice of the war which Napoleon had waged against the Prince, wisely holding that the presumption of law, upon which they were bound to act, was in favor of its justice. Nor did it matter that the Prince, instead of giving battle to Napoleon, had departed, and resigned his country to the military occupation of the enemy. They pointed out that the Prince had, from the time of his departure or abdication, been an active enemy of the new government established under Napoleon and Jerome, and that, by the laws of all countries, the property of a person, qui sub publico egit against the state, was confiscable.

They rejected the doctrine that, because the Prince had retained possession of the instruments containing the written acknowledgments of the debtors, he therefore had constructive possession

of the debts, the circumstances being considered under which the money had been borrowed-adopting the principle of the Roman Law, “Dissolute quantitatis retentum instrumentum inefficax penes creditorem remanere * * * non est ambigui juris.”

They considered how the question was affected by the return of the Prince, and by his reclamation of his former property, and they held that the principle of the decision of the Amphictyons in the case of the Thebans and Thessalians was sound law, and that it had been so treated by almost all jurists, ancient and modern.

They considered the general question whether, after peace, there did or did not take place a restitutio in integrum with respect to those who had been dispossessed by war. They held that, even according to the letter of the Roman Law, the restored owner must take the property as he found it, and was entitled to no compensation for the damage which it might have suffered in the interval; that what was actually gone he could not claim to have replaced; and especially that what the public exchequer (fiscus) had alienated was not to be restored.

That as to such alienations the principle of all law, whether private, public, or international, was expressed in the words of the Roman Law," Non debet quod ritè et secundum leges ab initio actum est, ex alio eventu resuscitari."

It was impossible, these judges observed, to consider the return. of the Prince as a continuation of his former government.

He had not been constantly in arms against Napoleon, and at last. successful, by force of arms, in recovering his domains. He had been treated by the peaces of Tilsit and Schönbrunn as politically extinct, and the King of Westphalia had been recognized by the continental powers as Regent of Hesse Cassel.

They remarked that the Prince's own tribunals of Hesse Cassel had pronounced (June 27, 1818,) that those subjects of the King of Westphalia who had paid to him or his exchequer their debts, and received due discharges, could not be legally called upon to pay at second time; and they thought the principle of that decision, as well as the authorities which they had referred to, led them to the judicial conclusion that all the debts, whether the whole sum had been paid or not, for which discharges in full had been given by Napoleon, were validly and effectually paid; and they, therefore, so far, reversed the former sentences, leaving, it should seem, both parties to pay their costs.

OCCUPATION OF NAPLES BY CHARLES VIII., 1495.

(Phillimore's International Law, III., 838. )

May citizens legally discharge the debts which they owe to the sovereign by paying the amounts to the temporary conqueror or military occupier of the territory of the state?

In the year 1495, Charles the Eighth of France overran Italy, and replaced for a moment the House of Anjou upon the throne of Naples. During his brief tenure of that kingdom the French king bestowed upon his adherents all that he could lay hands upon. Amongst other devices for enriching the Angevin party, that of calling in debts due to the state from the opposite faction was adopted. Many of these debtors paid honestly the full amount of their debt. Some tried to drive a bargain to their advantage, paying only a portion of their debt, and obtaining a receipt for the whole. Some contrived to pay nothing, and obtain a written discharge from everything. Four months afterwards, when the French king, with the Angevins, was driven out, and Ferdinand, with the Arragonese, was restored, the question as to the validity of these payments and receipts was sharply contested. Among other jurists invoked to adjudicate or arbitrate upon it, was one summa auctoritatis, named Matthæus de Afflictis. His conclusions on this important subject are as follows:

"Prima conclusio: Quod illi debitores dictorum regum de Arragoniâ, qui fuerunt in morâ solvendi dictis regibus pecuniam debitam in genere, et jussu regis Caroli et suorum officialium solverunt ipsis donatariis, quod non sunt liberati, et tenentur solvere dictis regibus, veris creditoribus.

"Secunda conclusio sit ista, quod illi debitores qui non fuerunt in morâ solvendi dictis creditoribus, sed jussi ab officialibus regis Franciæ, quod solvant illis Gallis, virtute largitatis regis, et ipsi fecerunt, quidquid eis fuit possible, ut non solverent, et realiter eis solverunt propter jussum pœnale, quod isti sunt liberati.

"Tertia conclusio sit ista, quod si debitor fuit in morâ, sed erat infra tempus purgandi moram, et infra illud tempus sit exactus ab illis Gallis jussu magistratûs tunc solvendo Gallis perindè habetur ac si non esset in morâ, et sic erit liberatus.

"Quarta conclusio sit ista, quod debitor, qui solvit Gallis illam pecuniam debitam regibus de Arragoniâ virtute jussûs magistratûs,

cui non potuit resistere, et pecuniam illam debitam post diem solu. tionis faciendæ erat solitum quod ipsi debitores penes se retineban pro expensis occurrentibus in administratione officii nomine regio, si ipsam pecuniam Gallis solverunt, sunt liberati, etiam quod fuerint in morâ.

Quinta conclusio sit ista, quod illi debitores, qui solutionem probant per confessionem Gallorum publicam vel privatam, ita, quod non probant veram numerationem pecuniæ eis factum, non sunt liberati, sed debent solvere veris creditoribus, quantumcunque ostenderint dictum jussum.

"Sexta conclusio, quod illi debitores, qui se concordaverunt, quod si non ostendunt veram solutionem in totum vel in partem, non sunt liberati.

"Exitus rei approbavit istas conclusiones."

SECTION 39.-TERMINATION OF WAR.

THE "MENTOR."

HIGH COURT OF ADMIRALTY.

(1C. Robinson, 179.)

Hostile acts committed after the conclusion of peace are illegal; and the injured party may sustain an action for damages against the wrongdoer. But if an officer commits such act in ignorance of the ending of the war, his own government should protect him.

The following is an extract from the judgment of Sir W. SCOTT :"The circumstances of the case, as far as it is necessary to state them, are these: The ship being American property, was on a voyage from Havannah to Philadelphia, in 1783; off the Delaware she was pursued by His Majesty's ships, the Centurion and the Vulture, then cruising off that river, under the command of the admiral on that station, Admiral Digby. All parties were in complete ignorance of the cessation of hostilities; not only the persons on board the King's ships, but the Americans, as well those on the shore, as those on board the vessel. In the pursuit, shots were fired on both sides, and, it is alleged on the part of the British, that the ship was set on fire by her own crew, who took to the shore.

“Now, I incline to assent to Dr. Lawrence's position, that if an act of mischief was done by the King's officers, though through igno