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Property-Minerals--Miping Operations. In an action brought by one mineral tenant against another adjoining tenant under the same proprietor, for damage done because of water flowing into the Pursuer's mine from the Defender's workings; Held (1st) Defender was not liable for the natural drainage of his, the Defender's, mine; (2nd) nor for water arising from dislocation of drains and subsidence of surface arising from defender's operations; and (3rd) The Pursuer was in fault because he had, though with the Landlord's permission, removed a natural barrier of coals between the mines, which would have prevented the flow of water complained of. Numerous English Decisions were quoted and relied on —8 Jan., 1876. Wilson v. Waddell, 3 S.C. 288.
First Platform of International Law. By Sir EDWARD S. CREASY, M.A., Professor of Jurisprudence in the Hon. the Four Inns of Court; late Chief Justice of Ceylon; Emeritus Professor of History in University College, London ; sometime Fellow of King's College, Cambridge. John Van Voorst, 1876.
Underthis quaint title is introduced to the world the fruit of much thought in a branch of the Science of Jurisprudence very necessary for the Statesman and Politician, and scarcely less necessary for the law student who aspires to become a Jurist. Of the wealth of research and citation with which the subject is treated it may be enough to say that it is characteristic of the author. From Solon and St. Paul, from Cicero and Lord Bacon, from St. Thomas Aquinas and Sir Walter Raleigh, as well as from all the best writers of ancient and modern times who have laid down or interpreted the Principles and the Rules of the “ Jus inter Gentes," Sir Edward Creasy draws something germane to his purpose. In stating this purpose to be the supply of a sound foundation, and a duly arranged framework, the general limitations of the book
in which we may find ourselves wishing that Sir Edward had been more full in his treatment, we must bear in mind that his chicf aim was" to teach principles," rather than to explain their details. Of the twelve chapters into which the book is divided, the first seven may be classified as introductory, containing " notions générales" on the subject, while the pith of the matter is to be found in the last five chapters, and in the “ Epilegomena," on the “ Privileges of Public Ships in Foreign Ports," and on "International Arbitration."
Space will not admit of our touching upon more than a few of the many points which we might usefully discuss in a review of the work before us. The author of the “First Platform ” has made a liberal use of the labours of his predecessors, but wherever Sir Edward Creasy speaks in his own person, he appears to us, whether we are in any particular instance able to agree with him or ut, to be generally moderate and judicious in his views,
holding the balance with great impartiality between the often very conflicting doctrines of the older and later schools of International Jurists and Text writers. We are sincerely glad, and we suspect most students of Jurisprudence will share in our satisfaction, that Sir Edward abandoned the use (save in marginal notes) of the fearfully and wonderfully made compounds, “ Jus Law," “Lex Law,” and “Mos Law," with which he at one time intended to startle his readers. They would, we can scarcely doubt, have proved " white elephants" to their learned inventor.
Of the value of the Utilitarian principle, when rightly apprehended, Sir Edward Creasy is, like Austin, fully persuaded, holding with Cicero, that the “Honestum" and the “ U tile" are coincident. But it does not seem easy to make them agree in some points of the modern doctrine as laid before us from the writings of Bluntschli, Calvo, and other living Publicists. The case of the arrest of certain officers of H.M.S. La Forte by the Brazilian military authorities at Rio Janeiro (“ Platform,” p. 192) appears to us, notwithstanding the award of the King of the Belgians, a weak one to quote in proof of the view that the privilege of exterritoriality “does not extend to misconduct committed on shore.” Unfortunately, Sir Edward cites the case only from a South American writer, Calvo (Droit International Théorique et Pratique, I., p. 794), whose account is meagre and one-sided, instead of from Ortolan's far more impartial and detailed account in the first volume of his “ Diplomatie de la Mer,” (pp. 431-444). We happen to have studied this case carefully, and must confess that we cannot consider it one upon which any judgment can be formed as to the course which ought to be pursued by the authorities of a State within whose territory the officers or men of a Public Ship of War may “misconduct " themselves. We trust that Sir Edward will add a reference to Ortolan on this case in future editions of his work.
Some of the questions touched upon in the present volume were discussed under Sir Edward Creasy's presidency at the Brighton Congress of the Social Science Association, and we are somewhat surprised that he does not quote the most recent cases in which the responsibility of a State for the “satisfaction" to be accorded by its Penal Laws has been the subject of rather sharp diplomatic correspondence. Bluntschli's language on this point is very strong, and it seems to embody the principles upon which the Imperial German Chancery has already acted in regard to Belgium, and would act again, probably, in any case where it thought itself sufficiently strong to insist upon the modification of the Municipal Laws of a weaker State to bring them into harmony with its own conceptions of International obligations. For it is clear that Germany, at least, does not think of States what the Roman jurists thought of their ideal “ Paterfamilias;" “incredibile est in aliquo facile errasse."
To the judgments delivered in the “ Alabama" Arbitration, and therein more especially to that of the Lord Chief Justice of England, Sir Edward Creasy makes a deservedly constant reference. It appears to us that Mr. Adams, for the purposes of his special pleading, attenuated the privileges of diplomatic repre. sentatives in his arguments at Geneva, to a degree which would be probably strongly resented by the United States if the views expressed by him were to be carried to their legitimate conclusion. And the question of origin, in regard to a vessel claiming to be a public ship of war of an organized political society, seems to us a dangerous one to entertain, as well as wide of the true issue, which is whether it be duly commissioned by a properly organized society, having a right to be considered a belligerent. In the days of our warfare against the France of the First Republic and Empire, we transferred to our own Navy List ships which had been built for, and originally commissioned by, the French Government, but had been captured by us in the course of engigements at sea. Is it to be contended that there was a taint of “ original sin ” about our acquisition of these vessels, and that they never lawfully passed into our service ? It is difficult to construe the arguments of Mr. Adams in a sense that shall not be at least patient of such a reductio ad absurdum.
The very important question of the exterritoriality of public ships of war in the waters of a foreign State demands a few words from us in this place, although we might be contented to leave it in the position which it has made for itself in our own pages, under the lucid and exhaustive treatment of Sir Travers Twiss. The subject necessarily comes up for discussion in the body of Sir Edward Creasy's work, and it also forms the most valuable and interesting part of his “ Epilegomena.”
Four of the Geneva Arbitrators gave it as their verdict that this privilege was “not an absolute right, but solely a proceeding founded on the principle of courtesy and mutual deference between nations." The point which those Arbitrators seem to have chiefly had in view was the liability of the privilege to be “ cancelled at any moment without cause for offence being given." (Judgment of Count Sclopis, “ Platform," p 184.) We have not such an opinion of the angelic meekness of human
nature, whether exhibited by individuals or States, as to believe that such a sudden withdrawal of a long unquestioned privilege would not give cause for offence.
In his “ Epilegomena," Sir Edward argues that “as a case of privilege all these difficulties that have been raised against the full allowance of the immunities hitherto generally supposed to belong to war-ships, vanish at once out of existence." We regret to be unable to accept this easy solution. Sir Edward insists that “privilege may always be waived by the person for whose benefit it was introduced,” and cites from the Lord Chief Justice's Geneva judgment the maxim“ Unusquisque potest renuntiare juri pro se nato." But, in the case under consideration, the privilege of exterritoriality attaches to the public ship of war as representing the sovereignty of the nation whose flag floats over it, and we find ourselves quite unable to conceive that it should be within the power of the captain of such a ship to waive one iota of the privileges of the State which he represents, without direct orders to that effect from those who commissioned him. And in that case it would be the State, and not the captain of the manof war, which would make the concession, “pro hac vice,” if there appeared to be adequate reasons to do so, owing to special circumstances of time or place. We cannot but think that a commander of a public ship-of-war, who should take it upon himself to yield any such point without authorisation, would find a court-martial awaiting him on his return home, whether the privilege waived related to the honours to be paid to the war-flag of his country, or to the right of asylum afforded by it; and that whether it were in question for the ex-President of a South American Republic, or only for a fugitive slave, who had heard that the British flag would give him liberty, and raise him from the position of a chattel to the status of a free man.
We fear that the interest with which we have followed Sir Edward Creasy's arguments, even where we could not agree with him, has already betrayed us into exceeding the limits within which the inexorable demands of space must warn us to confine ourselves. There are yet many words which we would fain say, and many points to which we would fain draw attention. Scattered up and down the 700 hundred pages of the “ Platform," there are not a few antinomies which, no doubt, Sir Edward will reconcile in a future edition. Some of these are curious, such as the passages in which the phrase "now" is used in relation to a time denoted in brackets as 1875. Still more curious is the way in which President Woolsey oscillates between bearing his