16th May, 1895, referred to the arbitration of Professor de Martens, the distinguished Russian jurist.

Professor de Martens made his award in writing on the 13th February, 1897,* declaring that the Dutch Government was liable for the acts complained of, and, estimating the damages by way of indemnity as follows: £3,500 to be paid to Captain Carpenter; £1,600 to the officers and crew of the Costa Rica Packet, and £3,800 to the owners of the ship, with interest at 5 per cent. from the end of November, 1891, the date of the original arrest. The arbitrator also awarded £250 to the British Government by way of costs.

The reasons for the award are stated at length, and are very interesting Professor de Martens begins by reciting: “that the right of sovereignty of the State on the sea “adjacent to the land is determined by the range of a

cannon at low water; that on the high sea even merchant "ships constitute detached portions of the territory of the “State whose flag they carry, and consequently are only “judicially liable for acts committed on the high sea, to “their respective national authorities; that the State has “not only the right but the duty also to protect and “defend, by all the means authorised by International Law, “its subjects abroad, when they are the victims of arbitrary

proceedings or breaches of law committed to their prejudice; that the Sovereignty of the State and the “independence of its judicial or administrative authorities “could not be upheld by the arbitrary suppression of the ' legal security which ought to be guaranteed as much to

strangers as to the subjects in the territory of all civilized "countries.”

The award then goes on to find as matters of fact that the prahu was seized by Captain Carpenter,“ incontestably “outside the limit of the territorial sea of the Dutch Indies," * See Times, 24th March, 1897.

and that the Act was cognizable, if at all, only by British Tribunals; also that “the treatment inflicted on Captain

Carpenter in the Macassar prison was not justifiable in the case of a subject of a civilized State who was detained

on an accusation, and that consequently this treatment “entitles him to a just compensation.”

It is noteworthy that Professor de Martens explicitly abandons the old principle of the “ Marine League" limit of jurisdiction over Territorial Waters. This is probably the first formal International declaration, in which the more modern view advocated by the Institute of International Law* in 1891 and 1894, has been explicitly enunciated.

Looking at the main question on its merits, several considerations are at once suggested. In the first place, the principle of extra territoriality upon the High Seas, is, of course, liable to certain exceptions, the chief of which is the case of Piracy. If the proceedings of the Costa Rica had in fact been piratical, nothing more could have been said on the matter. The Batavian authorities would have been justified throughout. In arresting a foreign subject, however, for an offence alleged to have been committed outside their jurisdiction, they must be taken to have assumed the risk of consequences in case their charges failed to be substantiated. Their position, in short, was very analogous to that under English Law of a private citizen who arrests another without warrant on bare suspicion. If his suspicions prove unfounded, he has exposed himself to a claim for damages. In the present case, the Dutch authorities themselves confessed the groundlessness of the charge by abandoning the prosecution.

In the next place, the mode of conducting the whole proceedings was, as the arbitrator pointed out, "not " justifiable in the case of the subject of a civilized State."

* See L.M. and R., Vol. 17, p. 245, and Vol. 19, p. 318.

The arrest and detention were based on no reasonable grounds, and the actual treatment of Captain Carpenter was unnecessarily harsh.

It is to be observed that the case is not like those which have occasionally happened, in which an alien resident is injured by the acts of unauthorized private persons. In such a case, no claim for indemnity would reasonably lie against the Foreign Government unless (1) there were no remedy by recourse to the ordinary judicial tribunals and (2) the Government were indirectly responsible through not using due diligence to prevent the acts complained of. (See various instances and views cited by Wharton : Digest, Vol. II., § 223 and § 226, especially cases of damage done by mobs.)

In the present case, the wrong was done by the Government authorities themselves, and as it was without good cause shewn, it was clearly in accordance with International comity that compensation should be given. It is undoubtedly true that aliens must as a rule submit to the laws of the country in which they reside, but in what Hall* calls “exceptional cases " constituting "grievous oppression," or what Phillimoret calls “flagrant injustice,” it is open to the complainant's Government to exact reparation.

There was an interesting article last year in the Revue de Droit International, Vol. 28, No. 4, by M. Bles, a Dutch Jurist, in which he sought to shew that no claim for indemnity was sustainable by International Law. In the course of his paper he curiously enough referred to Professor de Martens as an authority in support of his contention.

There are two earlier incidents on record which bear some sort of analogy to the present case, i.e., the English

* See International Law, V., ch. 3.
+ See International Law, 3rd edition, & 87.

case of Macdonald, in 1860, which is referred to by Calvo in his Droit International, 3rd edition, p. 361, and the American case of Cutting, which is discussed in the Revue de Droit International for 1888, p. 559, et seq.

Property of Foreign Lunatics. In the recent case of In re Linden, De Hayn v. Garland, 1897, 1 Ch. 453, it appeared that Baroness von Linden, who was the daughter of a German father, and of German nationality and domicil, and resident in Bavaria, had been judicially declared a lunatic by the Royal Court of Bavaria. The effect of the Judgment was to make the lady a ward of Court, and to vest her property in “ the Deposit Commission of the Court.” The present application was made by the members of the Deposit Commission for payment out to them of a fund standing in the English Courts to the credit of the lunatic, and representing a share to which she was entitled under the marriage settlement of her parents.

Stirling, J., held that the case was distinguishable from In re Barlow's Will, 36 Ch. D. 287, and that as the decree of the foreign Court virtually operated as a transfer to the Deposit Commission, of the lunatic's property, the English Court had jurisdiction to order payment as requested, and under the circumstances ought to do so.

The point is dealt with by Dicey, in his “Conflict of Laws,” under rules 135 and 186, and by Westlake in § 10 of this work. The former refers to the law upon the subject as "not thoroughly well established,” but quotes such cases as Newton v. Manning, 1 Mac. and G. 362; In re Garnier, 46 L.J. Ch. 788, as shewing that at all events the Court has a discretionary jurisdiction. decision appears to have been based upon the assumption that the foreign decree was in effect an actual assignment of property, and this is the ground which Dicey (see

The present

pp. 508, 509) apprehends to be the true basis of a foreign curator's right to sue here for the lunatic's property. It is to be observed that Lindley, L.J., In ve Brown, 1895 (2 Ch.) 671, had already pointed out the special grounds upon which In re Barlow was decided.

Foreign Land and the Statute of Frauds. An interesting question arose in the case of Rochefoucauld v. Boustead, 66 L.J. N.S. Ch. 74. The action was for a declaration that the defendant held certain land in Ceylon as trustee for the plaintiffs. Amongst other defences, it was pleaded that the trusts alleged could not be proved by any writing signed by the defendant, and therefore that the action was barred by sect. 7 of the Statute of Frauds. The Court of Appeal upheld this particular plea. Lindley, L.J., said : “Having regard to Leroux v. Brown, and to the "language of sect. 7 of the Statute of Frauds, we are unable

to see why the defendant should not be able to rely on “that Statute as a defence to any proceedings in this

country, having for their object the proof and enforcing “of a trust, even of lands abroad. The Statute relates to the kind of proof required in this country to enable a plaintiff suing here to establish his title here. It does not relate to lands abroad in any other way than this; it regulates procedure here, not titles to land in other "countries."

The decision seems in every way consistent with the principle of Leroux v. Brown, 12 C.B. 801. (See Dicey, p. 518, note 4, and Westlake, $ 208.)

Foreign Judgments in rem. The judgment of Henn Collins, J., in the case of “Minna Craig” Steamship Co. dealt with in our last issue has since been affirmed by the Court of Appeal. See L.R. 1897