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because it is convenient; and the new edition of “Selwyn's Nisi Prius,” edited by Mr. David Power (with the aid of Mr. Wolferstan and Mr. Baugh Allen), will be found as useful as a circuit companion and for general reference, as the former editions were when trials took place under older systems of procedure.
The edition with which we have hitherto been familiar is the eleventh, published in 1845, and which, we believe, owed its chief improvement and revision to Mr. Romaine, the present able secretary to the Admiralty; and our experience of the work is this, that for those who already are acquainted with its contents, and understand its arrangement and defects, it is exceedingly useful for reference on circuit, and on any emergency where elaborate treatises are not at band. The two volumes, indeed,
. contain a general statement of the law, quite sufficient in ordinary cases for the purposes of counsel between the delivery of the brief and the trial. One finds, in fact, collected here, in a practical form and sufficient quantity, what one wants. The practitioner who knows what he wants, and the student who wants to know something about a given subject new to him, alike consult Selwyn with perhaps greater advantage than any other single publication. Nevertheless, it is scientific neither in its arrangement nor in the treatment of subjects; but this defect is, in a great measure, counteracted by the simplicity of the alphabetical order originally followed by Mr. Selwyn, and adhered to throughout successive editions. Moreover, a clear table of contents, a complete list of cases cited, and an ample and accurate general index, afford a compensation, to a great extent, for the inconveniences which otherwise might arise from that particular disposition of the matter chosen by the learned author half a century ago.
It is no easy task at any time to re-edit creditably a standard work, especially when it covers so extensive a field as does Selwyn's “ Abridgment of the Law of Nisi Prius.” But, in the interval between the last and the present edition of this book, both the forms and the fabric of our laws have been subjected to such important changes, that Mr. David Power has had thrown upon him even greater responsibility than is usual under similar circumstances.
Probably some would be inclined to think with us, that it would have been better to have cut out with greater boldness more of the old text than has been done ; but on the other hand, it must be remembered, that a competent editor is really better able to judge of such a question than those who have made use of his work for a few weeks only. We believe, however, that the true principles to be adopted in editing volumes like those of Selwyn, is to treat each subject de novo.
If modern cases have superseded those cited in the original edition, or illustrate better what the editor has to lay down or enforce, then the ancient references and the material founded thereon, should be altogether withdrawn—not even retained in addition to what is new. It is an inconvenience, alike to editor and reader, to be encumbered with what can be dispensed with, and the question which the former should ask himself when called on to use his editorial functions, seems to us to be—“How should I best lay before the practical lawyer what he wants to know? Will my meaning be clearer by retaining the old text, modifying it, or cutting it away, and substituting for it my own material ?" It is, indeed, easier to do this in such a work as Selwyn's than with certain other text-books. Serjeant Stephen's Commentaries would not be the valuable work it is if Blackstone's foundation had been allowed to interfere more with the general structure thau has of late been permitted. Indeed, all recent attempts to re-edit Blackstone's Commentaries have been failures; the last being notoriously the worst.
There is no reason why, with skilful and efficient editing, "Selwyn's Nisi Prius” should not, in name and form, but with many a variation from the first impression, go through twelve more editions. The probability of such an event will be enhanced by the present edition being found as useful by the profession as we think it will be.
A twelvemonth hence we shall be better able to say more authoritatively whether the edition now before us has been edited as carefully as we hope and believe it is. Use is the only test for such a production. A slip of the pen or of the press here and there among 1500 pages, and which any one may discover by chance, is no disproof of general merit and accuracy; and for our own part we discard our old edition in favour of the new one, with mixed feelings of regret at parting with a valued old friend, and of hope in finding in its successor even a better and trustier support in the hour of forensic strife and danger.
ART. VI.—THE LEGAL EFFECT OF WAR WITH
REFERENCE TO CONTRABAND.
NO T° mitigate as much as possible the calamities and sufferings
of warfare, and to restrict them to the belligerent powers, nations have deemed it convenient to act upon certain principles which like the common law of this country, have become fixed by usage, confirmed by precedent, and illustrated by the most eminent jurists.
These principles have been recognized in treaties between civilized nations in all ages, the effect being that countries not engaged in war, nor interposing in it, shall not be prejudiced by the feuds of contending nations. “It is certain,” says Vattel, “that, as they have no part in my quarrel, they are under no obligation to renounce their commerce for the sake of avoiding to supply my enemy with the means of carrying on the war against me. Should they affect to refuse selling me a single article, whilst at the same time they take pains to convey an abundant supply to my enemy, with an evident intention to favour him, such partial conduct would exclude them from the neutrality they enjoyed. But if they only continue their customary trade, they do not thereby declare themselves against my interest; they only exercise a right which they are under no obligation of sacrificing to me.” 1
1 It must be a continuance only of such customary trade.—Hall on Captures, 215_233 ; Lord Erskine's speech, 8th March, 1808; 10 Cob, Parl. Deb., 935.
It is an inevitable consequence of the existence of war, that discussions should arise as to the commercial rights of nations not embroiled in the quarrel. The result has been sometimes to cripple, but frequently to favour, their commerce; and the belligerents themselves bave often found a mutual benefit in the exchange of their own produce, through the instrumentality of neutral carriers. In many of those instances it became the duty and the necessity of the neutral state to assert with decision the commercial liberties of its subjects, the belligerents being influenced by consideration of the power which might be thrown into either scale by such state, when they might have been disposed to ignore the advantages of unrestricted commerce. But though these motives operated to introduce the practice, so varied and complicated were the interests, and so changeable the course of proceeding, that some unvarying tribunal became necessary; and for this purpose the opinions of a few wise men were erected into a code of international law, and something was gained towards permanency and justice by the admission of those authorities.
But the commerce of neutral with belligerent states, to be entitled to immunity, must be legal. “ Whenever," says Vattel (Chitt. Ed., 336), “I am at war with a nation, both my safety and welfare prompt me to deprive her, as far as possible, of every thing which may enable her to resist or injure me. In this instance the law of necessity exerts its full force. If that law warrants me, on occasion, to seize what belongs to other people, will it not likewise warrant me to intercept every thing belonging to war which neutral nations are carrying to my enemy? Even if I should, by taking such measures, render all those neutral nations my enemies, I had better run that hazard, than suffer him who is actually at war with me thus freely to receive supplies and collect additional strength to oppose me.”
It is therefore very proper, and perfectly conformable to the
It has even been holden that a British-born subject, while domiciled in a neutral country, may legally trade from that country with a state at war with this country, Bell v. Reid, 1 M, & S., 727.
law of nations, which disapproves of multiplying the causes of war, not to consider those seizures of the goods of neutral nations as acts of hostility. To limit these inconveniences, and secure as much freedom to the commerce of neutral nations as is consistent with the laws of war, certain principles seem to be generally recognized among civilized nations of modern times. Thus, a careful distinction is made between ordinary goods which have no relation to war, and those that are subservient to it. According to Vattel (336), neutral nations should enjoy perfect liberty to trade in the former; the belligerent powers cannot with any reason refuse it, nor can they prevent the importation of such goods into the enemy's country. The care of their own
. safety, and the necessity of self-defence, do not authorize them so to interfere; for the goods referred to will not render the enemy more formidable, and any attempt to interrupt the trade therein would be a violation of the rights of neutral nations, and a flagrant injury.
Commodities useful in war, or auxiliary or subservient to it, and the importation of which to an enemy is prohibited, are called contraband goods. What commerce shall be deemed contraband, is a question that has been much discussed between the governments of belligerent states and the merchants of neutral nations. Grotius, in a classification which has been adopted ever since his time, divides all articles of commerce for the above purpose under three heads :-(1.) Materials ready wrought up for the immediate purposes of war; e. g., arms and ammunition designed for war. (2.) Articles of luxury. And (3.) materials which may be wrought up or employed for the purposes of war; e. g., sail-cloth, timber, pitch, sulphur, money, provisions, ships, &c., which, being of use in times of peace as well as of war, are frequently termed articles ancipitis usûs (De Jure Belli, lib. iii., c. 1, sec. 5). Azuni, in his celebrated treatise on the maritime law of Europe, classes under the head of contraband, “oggetti che possono immediatamente servire per la guerra” (Dritto -Maritimo, c. 3, art. 2, vol. 2, p. 181); and Vattel (337) specifies as contraband, arms, ammunition, timber for shipbuilding, all