CHAPTER IV

THE TERMINATION OF HOSTILITIES

817. THE PRINCIPLE OF UTI POSSIDETIS

THE SCHOONER SOPHIE

High Court of Admiralty, September 18, 1805

THIS was a question, as to the ship, reserved at the former hearing, on a claim given by the British proprietor, who stated her to have belonged to him, and to have been captured by the French, and carried into a port in Norway, and condemned by the French Consular Court in that country 1799. It now appeared that other proceedings had been afterwards had, on the former evidence, in the regular Court of Prize in Paris, where a sentence of condemnation had been pronounced, professing to affirm the sentence of the Consular Court.

[The British owner contended that there had been no valid sentence by a Prize Court to divest him of his property. The neutral claimant controverted this view, and further argued "that the capture and condemnation in question were acts of the late war. A treaty of peace had intervened; which must be taken to have effectually established the title of captor, and all other titles derived from him, on the ground of the uti possidetis, which may be considered as the natural basis of every treaty of peace, when no other conditions are expressed."

The advocate for the captors argued that "the neutral purchaser was no party to that contract [treaty of peace] and could not derive any protection from it."]

Sir William Scott [Lord Stowell], delivering the opinion of the Court: "I am of opinion that the title of the former owner is completely barred by the intervention of peace, which has the effect

of quieting all titles of possession arising from the war; and if the vessel has been transferred to the subject of another country, he also will be entitled to the same benefit from the treaty, as the captor himself would have been, if he had continued in possession. It is admitted that as to the enemy it would have this effect, and that it would not be lawful to look back beyond the general amnesty, to examine the title of his possession. If his property is transferred, the purchaser must also be entitled to the benefit of the same considerations, for otherwise it could not be said, that the intervention of peace would have the effect of quieting the possession of the enemy; because if the neutral purchaser was to be dispossessed, he would have a right to resort back to the belligerent seller, and demand compensation from him. I am of opinion, therefore, that the intervention of peace has put a total end to the claim of the British proprietor, and that it is no longer competent to him to look back to the enemy's title, either in his own possession, or in the hands of neutral purchasers. As to any effect of the new war, though that may change the relation of those who are parties to it, it can have no effect on neutral purchasers, who stand in the same situation as before. Those purchasers, though no parties to the treaty, are entitled to the full benefit of it; because they derive their title from those who are."

Further proof of the property ordered - Finally restored September 27, 1806.

(See Robinson: Admiralty Reports, vol. VI, pp. 138-42. The opinion and statement of facts are given in full with condensed statement of arguments. — Ed.)

§ 18. THE LIQUIDATION OF WAR

THE RELEASE OF THE FRENCH PRISONERS RETAINED IN GERMANY (1872)

FROM his own account we learn that when the Vicomte de Gontaut-Biron1 accepted the post of first Ambassador from France to

1 Vicomte de Gontaut-Biron: Mon Ambassade en Allemagne (1872-1873) [PlonNourrit et Cie, Paris, 1906]. Chapter II, of vol. I, from which this summary is taken,

the newly constituted German Empire he found his attention engaged by two important questions: that of the liberation of the French territory from the German army of occupation before the payment of the full amount of the war indemnity, and that of the release of certain French prisoners still retained by Germany. Soon after his arrival in Berlin early in January, 1872, the Ambassador of the Republic lost no time in presenting the views of his Government relative to this latter object. This he did with all the force and insistence the peculiarly delicate nature of his position would allow. The subject had already been much discussed in the press and a philanthropic French lady had visited the prisoners and succeeded in interesting the Empress and others in securing their release. The Empress promised to intervene at an appropriate opportunity. M. de Gontaut-Biron has given us his own appreciation of the merits of the controversy:

"In France, it must be admitted, the question of the sharpshooters [francs-tireurs] was not looked at with all the requisite justice; the French were blinded by a patriotic and quite natural feeling, that of their right to defend, at any cost, national territory invaded by enemies a feeling which is in a certain sense sacred, and which looks upon everything as permissible in its efforts towards its fulfillment. This feeling has unquestionably given rise to prodigies of heroism, as in Spain and Russia in the first years of the century, and as in France during the war. But the fact was not considered that these prodigious feats in their turn gave rise to terrible reprisals, to horrible cruelties, so that war assumed a character of atrocity and savagery. This is what the modern law of nations has made an attempt to avoid by imposing certain rules favorable to humanity upon the conduct of war.

"To a certain extent, the vehemence of our claims was not justified. But did that make Germany blameless? The law may have been on her side; but who does not know the axiom, summum jus summa injuria [the full measure of the law may mean the full measure of injustice]? It is possible to be at once strictly within the law and quite outside of humanity. A pitiless rigor in the exercise of her rights as a belligerent, a severity amounting even to

the author devotes to an account of his diplomatic action to secure the release of his compatriots.

cruelty toward the guerillas [corps francs] and sometimes toward the hostages taken by her, the harshness and the incredibly large number of her requisitions of every sort, in kind and in money, not to speak here of the leonine conditions of peace, these were what made the rights of Germany, whose leaders were continually invoking Providence, a real attack upon Christian civilization; these were what contributed to engender hatreds hard indeed to calm.

"It came to our ears that the German Government was dividing the prisoners into categories, and that it would liberate certain among them without delay. The government was occupied with settling this question, so M. von Thile, Secretary of State for Foreign Affairs, had told M. de Gabriac. He repeated it to me at my first interview with him, on the 14th of January. Faithful to the restraint I had imposed upon myself, I made a mental note to take advantage of the occasion to speak to him of our poor prisoners, if an opportunity were offered me; otherwise, not to approach the question of my own accord that day. M. von Thile quickly relieved my anxiety. Upon my expressing to him my hope of seeing good relations, founded on both sides on the wish to maintain peace, consolidated between France and Germany, he answered that his hopes were of the same nature as mine, and that the German Government was furnishing proofs of her good disposition by seeking very diligently to arrange for a settlement of the matter of our prisoners according to our desire. I thanked him. 'I will not conceal from you,' I added, 'that in France there are but few questions that touch public opinion so deeply as this does; everyone expected, peace once concluded, to see all the prisoners without exception come home, including those even who had been condemned to penalties during their captivity for infractions of discipline, for the cessation of the state of war, which was the original cause of such punishments, ought logically to entail the disappearance of all its effects. Remember, since you want peace, that nothing is more potent to consolidate it than an amnesty. There is hardly a department, there is not a class of society, not represented among these prisoners. By giving them all back to France together' (and I intentionally emphasized the word all) 'by sending them back into every corner of our country,

you would occasion, in families among all our citizens, a joy and satisfaction more efficacious than anything else as a means toward pacification and as a guarantee of peace. It would be, in my opinion, an act of the best policy for you yourselves.'

Against this M. von Thile urged the severity of Germany's discipline and her military laws, which, according to him, had not been applied to our soldiers in all their rigors; far from it; nevertheless he renewed his earnest assurances of the good will of his Government and of its desire to settle the question quickly and satisfactorily."

After some further conversation, in which Von Thile complained of the hostile attacks of the French press, the Ambassador assured Von Thile of the sincerity of his country's desire to establish good relations with Germany. To the latter's assurance in regard to the amicable desires and intentions of his own Government Gontaut-Biron replied, "Well, then, for the sake of such precious interests give us the amnesty."

"The Secretary of State had given me too many assurances of the German Government's good-will on this point to answer me in the negative; but he affected a certain astonishment at my insistence, on the ground that most of our prisoners did not deserve so warm an interest, since the grounds for their condemnation, according to him, were recognized crimes."

A few days later the Emperor assured the Ambassador that he hoped soon to liberate certain categories of the prisoners and that he had been on the point of signing the decree when had come the news that the French juries at Paris and Melun had acquitted those accused of attacking the German soldiers and that this had alarmed his soldiers and their families. To assure them he had had to delay affixing his signature as he had intended. GontautBiron expressed his gratitude to the Emperor but to Von Thile he made some observations regarding the conditions of the promised release:

"I told him of the mixture of satisfaction and apprehension that I felt; apprehension, in regard to the inconsiderable effect that would be produced in France by a partial amnesty, which, in consequence, would not accomplish the effect intended by both his Majesty and Prince Bismarck; on the other hand to pass the