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Ionian Ships, Case of the (The Leucade)

State Trials Cited authorities 11 Cited in Precedent Map Related
Vincent
JurisdictionEngland & Wales
Judgment Date18 April 1855
Date18 April 1855
CourtState Trial Proceedings
THE IONIAN SHIPS. THE LEUCADE. PROCEEDINGS IN THE ADMIRALTY COURT, BEFORE DR. LUSH1NGTON, FOR CONDEMNATION OF PRIZE, FEBRUARY 28TH, MARCH 5TH AND 7TH, AND APRIL 18TH, 1855. (Reported in 2 Ecc. & Adm. 212 ; Spinks Prize Cases, p. 193.) Claim in the High Court of Admiralty for the restitution of the Leucade, an Ionian vessel captured during the war with Russia for trading with the enemy. The Ionian Islands came into the possession of Great Britain during the Napoleonic war, and at the conclusion of the war, the following articles were agreed upon between Great Britain, Austria, Russia, and Prussia by the Treaty of Paris, of November 5th, 1815,(1) to which other Powers afterwards acceded The United States of the Ionian Islands to form a single, free, and independent state under the immediate and exclusive protection of the King of Great Britain, and the guarantee of the other contracting Powers. Internal affairs to be regulated by the States with the approbation of the protecting Power, which should employ a particular solicitude with regard to the legislation and administration of the States, and name a High Commissioner for that purpose. A Constitutional Charter to be drawn up by a Legislative Assembly and ratified by the protecting Power. The protecting Power to have control of military forces. The trading flag of the States to be recognized as the flag of a free and independent state. None but commercial agents or consuls to be credited to the States. Held by the Court of Admiralty, decreeing restitution- Protectorate(2) Treaty Declaration of War by Protecting Power International Status Jurisdiction. That by the Treaty of Paris, Great Britain renounced all rights acquired by conquest in favour of a new settlement under the guarantee of the other contracting Powers. That, in a court of law the international relations of the States must be determined by the treaty without regard to the antecedent condition of the Islands, or the subsequent Constitutional Charter. That the protecting Power being possessed of the sole military and diplomatic power under the treaty, possessed also the power of making peace and war on behalf of the States ; but that as the States had been recognized as a free and independent state with a separate trading flag, a declaration of war by the protecting Power on its own behalf (1) As to the cession of the Ionian Islands to Greece in 1864, see below, p. 476 n. (2) As to semi-sovereign or protected states in Europe, see Martens. Precis du Droit des Gens Liv. I. c. 2. 20; Wheatons International Law, ed. Boyd, 35 ; Thies, Law of Nations, vol. I. p. 33. ; Phillimore, International Law, LUCY. &c. ; Heffter, Droit International, 22 ; Calvo, Droit International, 64 ; Engelhart, Considerations Historiques et Juridiques stir les Protectorate, Paris, 1896 ; Despagnet, Essai stir les Protectorate, Paris, 1896. As to the protected states of India, see Aitchison, Treaties, &c., relating to India and neighbouring countries, 1892 ; Tupper, Our Indian Protectorate, 1893 ; Lee Warner, The Protected Princes of India, 1894 ; Sir Henry Maine, Minute on the Kathiawar States and Sovereignty (reprinted in Grant Duffs Memoir, p. 320) ; Sir Courtenay Ilbert, Note on " Act of State as applied to the Government of India in Ruling Cases, vol. 1, p. 821 ; Westlake, International Law, c. 10 ; see also cases collected in note to Elphinstone v. Bedreechund, 2 St. Tr. N.S. 449, and ,Daniodhar Gordhan v. Deoram Kanji, 1 A.C. 332 ; Sirdar Gurdyal Singh v. .Rajah of Faridkole, 1894, A.C. 670; also the Foreign Jurisdiction Act, 1890, 53 & 54 Vict. c. 37. s. 15, and the Interpretation Act, 1889, 52 & 53 Vict. c. 63. s. 18 s,-ss. 4 and 5, as to the meanings of " India " and " British India." As to protectorates over semi-civilised or uncivilised countries, see Hall, International Law, 38,* and Foreign Jurisdiction of the British Crown, Pt. 3. c. 3 ; Westlake, International Law, c. 9 ; Lawrence, Principles of International Law, pp. 160-168 ; Despagnet, ubi sup.; the various Orders in Council made for such territories under the Foreign Jurisdiction Acts, in Statutory Rules and Orders, vol. 8; summing up in Reg. v. Jameson, 12 Times L.R. 586. 435] The Ionian Ships, 1855. [436 would not of itself put them in a state of war ; nor could that effect be attributed to a proclamation of the States Senate notifying the declaration of war by the protecting Power.(3) That Ionian vessels were not within the provisions of the British Order in Council against " British vessels " trading with enemys ports. Qusere, whether questions as to the international status of the Islands were not rather for the Executive Government than for the Law Courts ? (4) (3) See the opinions of the Law Officers below, App. F., p. 1229. (4) On this question see Taylor v. Barclay, 2 Sim. 213 ; Yrissari v. Clement, 2 C. & P. 223, 3 Bing. 432; Cremidi v. Powell below, p. 787; The Charkieh, L.R. 4, A. & E. 59; Mighell v. Sultan of Johore, 1894, 1 Q.B. 149, where it was held that the certificate of the Secretary of State for the Colonies was conclusive evidence of the sovereign status of the defendant ; and Rej. v. Jameson, ubi sup. This was a claim for the restitution df the Leucade, an Ionian vessel captured for trading with the enemy, and raised the question whether the United States of the Ionian Islands, which were under British protection, were to be treated as neutrals or belligerents in the war between Great Britain and Russia. The Ionian Islands were subject to Venice until the fall of the Venetian Republic in 1797, when they were annexed to France by the Treaty of Campo Formio.(a) The French were afterwards driven out in 1799 by the allied fleets of Russia and Turkey, and the islands were erected into the Republic of the Seven Islands, under the suzerainty of the Porte and the guarantee of Russia, by the convention of Constantinople between Russia and the Porte (h) in 1800. Subsequently Russia and France, by a secret convention of October 10th, 1801,(e) recognised and guaranteed the independence and constitution of the Ionian Republic, and agreed that foreign troops should be withdrawn from the islands. France also recognised the Republic by the Treaty of Amiens with Great Britain in 1802.(d) On the resumption of hostilities between Great Britain and France. the Ionian Republic issued a proclamation of nentrality.(e) By a secret convention between France and Russia signed at Tilsit, July 9th, 1807,(f) Russia undertook to withdraw her garrisons from the islands, and to hand them over to France. Six of the islands were captured by Great, Britain during the war, and the seventh, Corfu, was taken possession of by her after the conclusion of hostilities in the name of ^ (a) Martens, Recueil, 1st ed., vol. 7, p. 210. (b) Martens, Supp. au Recueil, vol. 2, p. 276. (c) De Clercq, Traitts, vol. 1, p. 474. (d) Martens, Supp. au Recited, vol. 2, p. 566. (e) lb. vol. 3, p. 537. (f) De Clercq, Trait64, vol. 2, p. 215.the allied Powers,(a) under Art. 3 of the Convention between the allied Powers and France of 23rd April, 1814.(b) At the Congress of Vienna, in the Conference regarding the Ionian (c) Great Britain proposed that they should be placed under the protectorate of Austria, but Russia objected, declaring that she felt bound to second the wishes which the inhabitants of the islands had expressed of remaining under British protection. The British plenipotentiaries did not then entertain this proposal, and declared that the six islands of which Great Britain had the sole possession, were not to be regarded as at the disposition of the Powers. Afterwards, by the convention between Great Britain, Austria, Russia, and Prussia, signed at Paris. 5th November 1815,(d) it was agreed, Art. I., that the Ionian Islands- " shall form a single, free, and independent state, under the denomination of the United States of the Ionian Islands." Art. II. " The State shall he placed under the immediate and exclusive protection of H.M. the King of the United Kingdom ..... The other contracting Powers do therefore renounce every right or particular pretension which they might have formed in respect of them, and formally guarantee all the dispositions of the present treaty." Art. III. " The United States of the Ionian Islands shall, with the approbation of (a) The circumstances relating to the capture and occupation of the Ionian Islands are described in a Return to an Address of the House of Commons of 19th February 1863, Pail Papers, 1864, B.C. 54., vol. N, p. 87. Lord Castlereagh in 1812, in a letter to Count Foscari, declined at that time to entertain a proposal that the islands should be permanently united to Great Britain. (b) Martens, N. Recueil, vol. I, p. 696. (c) Martens, N. Supp. au Recueil, vol. 1, p. 449 ; Castlereagh, Memoirs and Correspondence, vol. 10, pp. 224, 441. (d) Hertslet, Treaties, vol. 1, p. 45, 1827. 437] The Ionian Ships, 1855. [438 the protecting Power, regulate their internal organization, and, in order to give to all parts of this organization the necessary consistence and action, His Britannic Majesty will employ a particular solicitude with regard to the legislation and general administration of these States. His Majesty will, therefore, appoint a Lord High Commissioner to reside there, invested with all the necessary power and authorities for this purpose." Art. IV. " In order to carry into execution without delay, the stipulations mentioned in the articles preceding, and to ground the political reorganization of the United Ionian States upon that organization which is actually in force, the Lord High Commissioner of the protecting Power shall regulate the forms of convocation of a Legislative Assembly, of which he shall direct the proceedings, in order to draw up a new Constitutional Charter for the Stales, which H.M. the King of the United Kingdom shall be requested to ratify. " Until such Constitutional Charter shall have been so drawn up and duly...

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