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was most required. The better way to provide for new political combinations would be to revise the treaty, and by altering the stipulations, or even changing the signatories acknowledge the new order of things.
3. The vagueness of the obligation incurred in a treaty of guarantee weakens the moral duty to fulfil the treaty. A leading member of the late Government once stated in the House of Commons that a treaty between two States was as sacred as a contract between two individuals. If he meant that treaties ought to be held as sacred as contracts, he was laying down a principle which no one would dispute, but which does not place the theory of the obligation of treaties on a very high or secure ground. Many classes of contract, instead of being regarded as sacred, are by our laws held to be of no binding effect. Treaties which are imposed at the point of the sword by a victorious State correspond closely to contracts obtained by duress; but whilst the latter are not regarded as valid, the former are by International Law held to be binding.
Two observations may be made on the obligation of treaties. (1.) As a fact, the obligation of treaties has always been more or less weak. From the earliest times up to the present day, States have found it necessary to resort to various devices to strengthen the force of the obligation. Religious sanctions, pledges, hostages, and securities have all been used at different periods as a means for securing the due observance of treaties. And in our own days Germany deemed it necessary to occupy a large portion of French territory in order to secure the fulfilment of certain clauses of the Treaty of Versailles.
(2.) The weakness of the obligation to fulfil a treaty is naturally to be expected, for
(a) The perception of moral duty is not so clear in the case of States as in individuals. It is well known that a body of men will do acts from which a high-minded in
dividual would recoil, and that probably because, the sense of duty of the entire body will not be higher than what might be called the average sense of duty of the individual member. The individual is
more likely to feel the responsibility for his conduct than an absolute sovereign or a ministry.
(6) The treaty-making power, being generally lodged in the hands of the sovereign, or of a sovereign acting by the advice of a council or cabinet, is liable to be abused. The interests of a dynasty or of a party may lead to a State being committed to a treaty which in time proves distateful to the people at large; and as there are no International Tribunals to enforce treaties, it may happen that when the observance of the treaty is asked the feelings of the nation might make that impossible.
(c) New circumstances are always arising which the treaty did not contemplate, but which its author cannot disregard. When England •excluded Russian ships of war from the Black Sea, she did not look forward to the coming of the year 1870, when Austria would have ceased to be a great German Power and France and Prussia be engaged in a deadly struggle. Nor when England guaranteed the possession of Silesia to Prussia, did she ever think Prussia would become the strongest military Power on the Continent.
Is one then justified in concluding that such treaties of alliance as modern guarantees ought never to be entered into ? With the existence of the independence of Greece and the neutrality of Belgium as the practical result of such treaties, it must be acknowledged that the guarantee may play a useful and important part in regulating the relations of European States. But looking at the necessary vagueness of the resulting alliance, the future responsibilities it may involve, and the unforeseen events which may occur, such treaties should never be entered into where they are
needless, or where the difficulty can be solved in some
When they are absolutely necessary, care should be taken that, to use the words of Lord Carnarvon-" They shall be not only practicable, but shall have a fair likelihood of being carried into effect. They will be of little value if they carry in themselves the seeds of early dissolution. They must take into account the tendencies and events of nations and the plain indication of events.”
If circumstances require it, they should be revised. To consider a treaty as binding, and yet as “thrown into the shade,” may be a convenient policy for the time, but it is one which may result in serious complications in the future. The more clearly a State understands its relations to other States the less likely is it to adopt a course of action which may produce misunderstandings and differences. Mutual confidence is the best safeguard for peace, but such confidence cannot exist between States where their relations are determined by treaties in a state of "suspended animation."
J. E. C. MUNRO.
II.-NEW TRIALS IN FELONIES.
cases of felony after conviction is a question which may possibly not seem of immediate practical interest, but still, as a matter of procedure, may be worth consideration, especially as that procedure is to be dealt with by the Criminal Code Act. One of the sections of that Bill provides that one form of procedure shall be adopted in all proceedings against persons accused of indictable offences, and so, the distinction between felonies and misdemeanours being abolished, we may assume, that if formerly a new
trial were granted in case of misdemeanours a like remedy will be conceded in all cases of criminal offences. How a difference arose in dealing with the distinct classes of felonies and misdemeanours need not here be dwelt upon, but it occurs, as a singular result, that in the higher class of offences and where life was imperilled, there should not have been an appeal allowed, whereas in case of misde. meanours the remedy was open. The ground on which a right of appeal is denied is justified thus, that when once a man has gone through the suspense and distress of mind consequent on a criminal charge of this nature, he should not be again put in jeopardy. And this reason applies with force to the case of a prisoner charged with a felonious crime in the event of acquittal, but why should it not act with greater or a like force when a man has been convicted improperly or irregularly ?
In the Queen v. Scaife, 17 Q.B. 238, a new trial was granted where there had been a conviction for felony, but this case has been dissented from and overruled in R. v. Bertrand, L.R. 1, P.C. 531, and in R. v. Murphy, 6 M.P.C., Ca. 177. The Queen v. Scaife was an indictment against three prisoners for felony, and it being proved that a witness had been kept out of the way by the procurement of one of the prisoners, the Court held that the deposition of the absent witness was receivable as evidence against the prisoner by whose procurement the witness was kept away, but that it was not evidence against the other two, and that its reception without a direction to the jury, that it was not evidence against the latter, was ground for granting a new trial. The indictment had been removed by certiorari from sessions into the Queen's Bench, and sent down to be tried at the York Assizes before Mr. Justice Cresswell, and a rule nisi for a new trial was granted on the ground of the improper reception of evidence. It is stated in a note to the case in 2 Den., Crown Ca. 286, that
Mr. Justice Cresswell thought, as the record came from the Queen's Bench, that was the proper tribunal to deal with the case and not the Court for Criminal Appeal. Up to the hearing of that case it was assumed that no new trial could be granted in case of felony, and in R. v. Bertrand Sir J. Coleridge observed there was but a single case reported, in which an application for a new trial in felony had been made, and that one in which it had succeeded.
In the Queen V. Russell, 3 Ell. and B. 750, Lord Campbell is reported to have said :-"I, for my own part, reprobate the recent speculations as to the propriety of granting a new trial after acquittal for felony and murder. If there be an improper conviction it ought to be set aside, but I hope the same practice will never prevail in the case of an acquittal.” The decision in R. v. Scaife has been considered an innovation on the settled course of Criminal Law not warranted by practice or precedent, and so in R. v. Bertrand, L.R. 1, Privy Council 531, and in R. v. Murphy, 6 M.P.C., Ca. 177, it was by the Judicial Committee of the Privy Council not regarded an authority to be followed. Eminent jurists, however, have not adopted this view, and though the dissent of members of the Judicial Committee of the Privy Council is not recorded in any published cases before that tribunal, yet it is believed that the decision in R. v. Murphy and R. v. Bertrand was not unanimous. A distinction seems to have been forgotten in reference to R. v. Scaife; there the indictment, having been removed by certiorari into the Queen's Bench, became a record of that Court, and the procedure upon its own records differs from the ordinary practice of trials at nisi prius. The Queen's Bench acts on its own supervising jurisdiction over its records, and the trial is not complete till the Court accept the verdict, record the judgment, and pronounce sentence. It, therefore, requires the preceedings to be canyassed, and so the Judge's report of