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--- Treatise on Damages (3rd Ed.) ... ... 240 Michael and Will's Law of Gas and Water ... 490 Monahan's Method of Law ... ...
... 482 Palmer's Company Precedents ... ... .
... 245 Pollock's (Frederick) Digest of Law of Partnership
--- Principles of Contract (2nd Ed.) ... Pritchard's Stone's Justice of the Peace (8th Ed.) ... Roberts' Principles of Equity ...
.. ... 247 Russell on Awards
... ... 249 Sebastian's Trade Marks .
... ... 486
-.. Theodore) Criminal Law of the Navy ... 244 Webb's (Locock) Practice of Supreme Court ... 118 Willis-Bund's Oke's Game Laws
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Scottish. By Hugh Barclay, LL.D. ... 104, 357,
Scottish and Colonial ... ... ... ... ... 219 SOUTHERN SLAVS, Law and Custom among the ... ... 199 Treaties, The Obligation of. By H. Richard, M.P. ... 91 War, The Laws of, and the Institute of International Law 185
LAW MAGAZINE AND REVIEW.
No. CCXXVI.-NOVEMBER, 1877.
1.-THE DOCTRINE OF CONTINUOUS VOYAGES,
AS APPLIED TO CONTRABAND OF WAR
TT was an observation of one of the most illustrious 1 statesmen of the present century, that he had endeavoured in vain to ascertain with precision, how and when the use of the phrase “the Great Powers" found its way into modern Diplomacy, and how much its habitual use was to be regretted, as it gave countenance to the notion, that the greater the power of a State, the more it was at liberty upon its own views of justice and of expediency to regulate the obligations of International Society. Since the illustrious statesman,t to whom I allude, has passed away from the distinguished stage of public life, on which he played so influential a part, scarcely a quarter of a century has elapsed, during which great changes have come over the face of Europe. Italy for instance, as a consolidated State, has taken her place at the Council Board of the Great Powers, and the Ottoman Porte has been formally admitted into the European Heptarchy, bringing
. Read before the Association for the Reform and Codification of the Law of Nations, at the Antwerp Conference, 1877. Revised and corrected, with additions, by the Author.
+ The late Prince Metternich.
in its train within the European Concert of Public Law the inhabitants of considerable portions both of Asia and of Africa.
It was a wise precaution on the part of the Signatories of the Treaty of Paris of 1856 to disclaim explicitly, in one of the concluding protocols of the Congress, any intention on their part to prejudice the independence of other States, when they recorded their wish, that States between which any serious misunderstanding might arise, should, before appealing to arms, have recourse, as far as circumstances might allow, to the good offices of a friendly power. In the same spirit, in which they expressed this wish on their part, actuated by the desire to seek out every expedient, to use the language of the English Plenipotentiary,* which was calculated to prevent the recurrence of the calamities of war, they drew up a Declaration, the object of which was to mitigate the restrictions, which the occurrence of war between two or more nations imposes upon the commerce of neutrals, seeing that these restrictions have a tendency to become more burdensome with the growing freedom of international trade in time of peace, and with the probable enlargement of the field of operations in future wars, consequent on the aggregation of so many of the smaller States into great State-systems. But, in making this Declaration, the European Powers, who were represented at Paris in 1856, asserted no superiority of right, but only exercised a priority of action. Believing, however, their resolutions to have in view the interests of humanity, they engaged them. selves to bring them to the knowledge of the States, which had taken no part in their deliberations, and to invite them to accede to the declaration which embodied them. Upwards of forty European and American States have formally notified their adherence to that Declaration. Spain, alone of European Powers, has objected to the resolution abolishing Letters of Marque, whilst the Government of the United States of America has expressed its desire to go further, and to exempt from belligerent capture on the high seas all private property, which is not in the nature of contraband of war.
* The late Earl of Clarendon.
It is a noteworthy fact, and it has been remarked upon as such in a Report presented by one of the most eminent of American Jurists* to his own Government in 1866, “ that whilst the political department of the American Government,” to use the words of his Report, “was engaged in the early part of the present century in combating the overstrained constructions of the Laws of Maritime War set up by the Courts and the Publicists of England, not a few of the most exceptionable of those constructions were at the same time being transported one by one into the jurisprudence of the United States, by the judicial department of its Government, with a prevailing tendency to exaggerate the rights of prize in the interests of the captors.” There is an old saying, that those who live in glass houses will do well not to cast stones at their neighbours, and it would illbecome an English Jurist not to admit, that the Prize Tribunals of the United States had ample justification in the early part of the present century in reciprocating the rigorous rules, which Lord Stowell applied to the trade of neutrals during the wars of the French Revolution, and which were traditions from the wars of the previous century. But there are civilising influences at work in the present century, which were unknown in earlier days, and a certain equity has found its way into the proceedings of the English Prize Courts, which it is to the honour of the late Lord Kingsdown to have initiated, as President of the Appeal Court of the English Privy Council during the Crimean War; and of which the spirit, it may be hoped, will be contagious with our brethren on the other side of
* Opinion of Hon. Caleb Cushing, Attorney-General of the United States, furnished to the Secretary of the Treasury, Mr. MacCulloch, under date of April 11, 1866.
the Atlantic. I can speak from a large experience of the equity of the English Privy Council towards neutrals during the Crimean War, for I was counsel for the neutral claimants in every case but one of Appeal to the Privy Council, and I had only grounds for dissatisfaction with a single decision, and that was rather upon a matter of procedure, than upon the substantial merits of the judgment.
The Prize Courts of Belligerent States are, it must be admitted, anomalies of jurisprudence in the present day as regards their relations to neutrals, for they are in fact Courts of Inquisition, in which the burden of proof is cast by the Belligerent State upon the neutral trader to establish his right of exemption from capture. The procedure of such courts indeed is not out of keeping with the ordinary Law-procedure observed by the Courts of Criminal Jurisdiction at the time, when the Admiralty jurisdiction in matters of prize was first organised. In very early times the Admiral of a fleet of belligerent cruisers determined summarily by an inspection of the ship-papers, and an examination of the persons on board of the captured ship, whether the vessel with her cargo should be confiscated as prize, or be allowed to pursue her voyage. The Prize Court of the present day is little else than the deck of the Admiral's ship. It is true that in England, and in the United States, judicial forms are more adhered to than on the Continent of Europe, where prize questions are rather treated as matters of administration ; but if it be admitted, that judicial forms furnish primâ facie a better guarantee to neutrals, that their property shall not be confiscated, unless they have clearly violated the Law of Nations, judicial forms are capable of being made a veil for an oppressive exercise of belligerent right, if the judges are not alive to the danger of allowing the method of their municipal law to insinuate itself into their inquiry on a subject, the Law of which has no locality. I am not amongst