"not included in the Regulations populations and "belligerents remain under the protection of, and rule of the principles of the Law of Nations, as they result from the usages established between civilised nations, from the laws "of humanity, and the requirements of the public con"science."1 In the Manual of the Laws of War adopted by the Institute of International Law, Article (86) provides: "In "the grave cases in which reprisals become an imperative necessity, their nature and scope must never exceed the 66 measure of the infraction of the laws of war committed by the enemy." 66 66 It will readily be admitted that the right to resort to such retaliatory means as reprisals is one which needs to be exercised by the injured belligerent with the greatest care. Very full and careful enquiries ought to be made, and the law of war which, it is alleged, has been broken should be one which has been fully recognised as binding on the belligerents. The need for great caution in exercising this right is apparent when it is considered that the victims of reprisals will in almost all cases be not the actual perpetrators of the breach but innocent persons, such as prisoners of war detained in the power of the side resorting to reprisals. One further point demands notice, and that is, that whilst reprisals in time of peace are admissible only in the case of actual international delinquencies, reprisals in warfare are admissible for every kind of illegitimate act of warfare, whether an international delinquency or not. Mr. Balfour has written a defence of the Allies' reprisals by the blockade of Germany, and in the course of his remarks he urges that the Allies' action is justified by Germany's breach of International law in torpedoing any merchant ship believed to be British without regard to life or to ownership of cargo and without any pretence of a 1 Convention concerning the Laws and Customs of War on Land, 1907. legal investigation. In reply to the attitude assumed by some writers (such as Dr. Westlake, quoted above), that the crime of one party does not justify the other party in violating the law of nations, Mr. Balfour reminds his readers that international morality is a different thing from International law, and can only be binding if observed by both parties, i.e., can only be binding if there is reciprocity.1 Finally, Mr. Balfour lays stress upon the mildness of the measures adopted by the Allies, and this will readily be admitted if we compare such methods with the acts of the Germans in the Franco-German War, when they frequently burnt undefended villages by way of reprisal, or even with the acts of Lord Roberts in the South African War, when he burnt farmhouses for the same end. On the question of the legality of reprisals in warfare, therefore, we may conclude: (1) they have been recognised through all the ages as a means of securing legitimate warfare; (2) they ought not to exceed in severity the evil sought to be redressed; (3) while it is eminently desirable that the persons to suffer from reprisals should be the actual wrongdoers, yet this is not a sine quâ non, and innocent persons may be made the victims. In conclusion, let us glance for a few moments at the position of neutral countries. To what extent must they submit to the measures of retaliation adopted by Great Britain and her Allies against Germany? Although A. may have the right as between himself and B. to vindicate a right which B. has violated and to punish B. for such violation, yet it will at once be conceded that if A. by his action towards B. injures C., C. has a good ground of complaint. As between the belligerents themselves, the necessity for reprisals is the justification for the resort to them, and no one who has read the Declaration made by Great Britain on March 1st and communicated to neutrals 1 Cf. Wheaton's opinion quoted above. (set out above), and the Reply of Sir Edward Grey to the United States Ambassador on March 15th (in which the various violations by Germany of the laws of civilised warfare are summarised), will deny that Great Britain and her Allies have had ample reasons for the policy of Reprisals upon which they have embarked. Granted, then, that the necessity for reprisals is the justification for the resort to them, it is desirable to point out that by such measures innocent neutrals must not be injured. Neutral countries must, of course, submit cheerfully to many inconveniences during a great war, but, as pointed out by the United States Government, in their Note to Great Britain of April 2nd, while the changed conditions of naval warfare are recognised, it should still be possible to conform to the spirit of the rules of warfare, and, further, that if serious interruptions of neutral trade occurs, the British Government is expected to make full reparation for any violations of neutral rights. This will doubtless be done. W. E. WILKINSON. V. GLEANINGS FROM OLD SCOTS LAW. I. THE LAW OF DEATH-BED. ROM a very early date down to the year 1871 one of FRO the most curious features of the Scottish legal system was the existence of what was technically called the Law of Death-bed. This was the right possessed by the heir to have set aside any gratuitous disposition to his detriment by his ancestor if the deed whereby this was effected was executed during the illness of which the grantor died, unless, indeed, after its execution the grantor performed one or other of two acts which were held to imply convalescence. A deed set aside under this doctrine was said to be reduced ex capite The lecti. Whether the real underlying motive of its introduction was to secure the tranquillity of the ancestor's last hours, or whether it was solely to protect the interests of the heirat-law, or whether both reasons may have operated, has been much discussed; but, whatever the raison d'être of the doctrine, it was the heir, or those claiming under him, who in fact challenged the deeds of the ancestor which were executed when the latter was not in "liege poustie," as the phrase ran, this being a corruption of legitima potestas. odd thing about the working of the law of death-bed was that till 1696 no evidence of convalescence was receivable except attendance, unsupported, at either kirk or market. The grantor might have exhibited indubitable signs of physical strength, but it would be of no avail to save the deed, in the absence of proof that he had done one or other of the two things mentioned-attended kirk or market— these being the two places of public resort in each locality where there were likely to be witnesses who could testify as to each person's appearance and conduct. 66 The phrase at kirk or market" was one in common use in Scotland of a by-gone day, as appears from some of Burns's poems and songs. Attendance at kirk or market being for this purpose the sole evidence of health, it naturally became in each instance the desire of the grantor of the deed, or rather of those who had persuaded him to its execution and who would benefit by its provisions, to see that he attended one or other of these places of resort in order to validate the deed; and frequent attempts were made to satisfy the requirements of the law on this head by getting him to attend kirk or market when no one was about, and when, therefore, no means of checking the accuracy of the allegation of attendance were at hand. In order to prevent any such merely formal compliance with the letter of the law and disregard of its spirit, the judges of the Court of Session promulgated, in 1692, an Act of Sederunt, i. e., an Order of Court, in these terms:-"The Lords of Council and Session taking to their serious consideration, that the excellent law of death-bed, securing men's inheritance from being alienate at that time, may happen to be frustrate and evacuate (sic) if their coming to church or mercate be not done in such a solemn manner, as may give some evidence of their convalescence, without supportation or straining of nature: And seeing some may think it sufficient, if parties, after subscriving such dispositions, come to the church at any time, and make a turn or two therein, though there were no congregation at the time: And likewise, if they make any merchandize privily in a shop or crame, or come to the mercat-place, when there is no publick mercate; and all this performed before their own pickt out witnesses, brought along by the party in whose. favours the disposition is made, that the state and condition of his health or sickness may be as little under the view and consideration of other indifferent persons as can be; the occasion of which mistake might have been, that formerly there were publick prayers, morning and evening, in the church in many places, to which those who apprehended any controversie might arise upon the validity of their dispositions, were accustomed to come at the time of prayer; and some thought they might come to the church, though there were no publick meeting thereat, since these publick prayers were not accustomed, and to take instruments of their appearing there: For remede whereof, the Lords declare they will not sustain any such parties going to church and mercate, where it is proven that he was sick before his subscriving of the disposition quarrelled, as done in lecto, unless it be performed in the daytime, and when people are gathered together in the church or churchyard for any publick meeting, civil or ecclesiastick, or when people are gathered together in the mercate-place for publick mercate. And further declares, whensoever |