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should not be exposed to a greater penalty than 4os., even though it be his first offence of the kind, whereas if he happens to be the owner of a dog found at large and unmuzzled he may be liable to a penalty of £20; but it is manifest, that if, in the former case, he is, in addition to the fine imposed upon him, ordered to pay five guineas costs, the statutory limitation of the penalty to 4os. is rendered entirely nugatory. It would, perhaps, be well if the maximum penalty authorized by the legislature were, in all instances, to be a sum inclusive of costs, as it is now in respect of some offences, e.g. in the case of common assault, where the penalty must not exceed £5, inclusive of costs.
Half-a-crown and costs in one court may mean five or six shillings; in a neighbouring court, if the fees charged for service are heavy, ten or twelve shillings :-thus producing an inequality of which the full significance may readily escape the attention of the bench. The diversity of practice as to fees has been well exemplified of late on the hearing of applications made by “conscientious objectors," under a section of the recent Vaccination Act, which contains no provision authorizing an award of costs, nor affords any guidance whatsoever as to the amount of fees (if any) which the clerk may require. In the result, the "objector” in some courts escapes, we believe, without payment of any fee, while in others he is called upon to pay a fee varying from one shilling to three shillings or more. It would be well if this question of costs and fees could be placed on some more settled and satisfactory basis ; and this is especially desirable in connection with the fees charged for “orders," as distinguished from “convictions.” If, e.g. an old man earning 20s. a week were ordered at the instance of the guardians to contribute is, a week towards the maintenance of a grandchild, he would in many districts be required to pay at least 8s. 6d. for costs—a sum which must, we think, be generally regarded as, under the circumstances, excessive.
A brief reference may, in conclusion, be made to the question of appeals. The whole of the machinery relating to appeals from courts of summary jurisdiction is costly, cumbrous, and ineffective. There are appeals to Quarter Sessions, by Special Case, Certiorari, Mandamus, Prohibition, and by motion to the Probate and Divorce Division. The right of appeal is granted in a purely arbitrary fashion : if a man be fined 55. under the Municipal Corporations Act, 1882, for assaulting a borough constable, he may appeal to Quarter Sessions against the conviction ; but if he had been proceeded against under the Prevention of Crime Act, 1871, for this same offence, and fined to the extent of £20, he would not have enjoyed any such right of appeal. Again, if a man be fined 55. for riding a bicycle without a proper light, he may appeal to Quarter Sessions; if he be fined £10 for using a steam motor car without the proper lights he cannot appeal ; and
Apart from the remedies by way of mandamus and prohibition, it would, perhaps, be found sufficient and convenient if the sole mode of appeal against convictions or orders were by motion to the High Court, in a manner similar to that now adopted in the case of appeals to the Divorce Court under the Summary Jurisdiction (Married Women) Act, 1895. The appeal to Quarter Sessions, by way of a re-hearing, is, no doubt, attended with some special advantages, but it is of so costly a character that comparatively few persons are in a position to avail themselves of it; while experience gained under the Act of 1895, which strictly limits the mode of appeal, has shown that questions of fact, as well as questions of law, may sometimes be conveniently dealt with on motion to the High Court. Any reform in this direction is a matter which would, however, require very careful treatment, as the constitution and the efficiency of the tribunal at Quarter Sessions vary so greatly in the different localities.
C. M. ATKINSON.
VIII.--STATE INTERFERENCE IN (a) CONTRA
BAND TRADE, (6) BLOCKADE-RUNNING.
THE 'HE present attitude of the Government of this country,
when in a position of neutrality, to the commercial transactions of its subjects in the way of supplying combatant nations with the nerves and sinews of war, i.e. arms and munitions, may be summarily described by a quotation from the late Lord Palmerston. By replying, “Catch them if you can,” to the remonstrances of a belligerent Government against the license with which British subjects are allowed to carry on this trade, the noble lord epigrammatically described the attitude of his country on this subject. In other words, the English trader is unrestrained by the Government from supplying either belligerent with weapons to carry on the struggle, and his contraband contracts are even treated as legal in the English Courts, but if he should be caught by the injured party, the State abandons him to his fate.
In this essay we propose to consider whether a tinuance of this attitude in reality embraces the whole duty of a neutral Government from the standpoint of the comity of nations, and whether it is an attitude which is at all consistent with our dignity or our conduct in certain other international matters. The position among contraband articles which is filled by arms and munitions of war with regard to their effect on an existing war is so unique and so different from that of any other contraband article (with one exception, to be mentioned later), that we shall confine ourselves in this essay mainly to the international questions which arise from this branch of contraband trade alone.
In every modern war the question has cropped up as a root of bitterness between belligerents and neutrals with ever-increasing intensity. It was so in 1854, in 1861, and
in 1870, for reasons which are sufficiently obvious. “If," said Lord Grenville, “I have wrested my enemy's sword from his hands, the bystander who furnishes him with a fresh weapon can have no pretence to be considered as a neutral in the contest."
Inasmuch as it is now fully recognized that the neutrality of a State, in order to be genuine, must be "perfectly colourless” in the eyes of both parties, it is now a wellsettled point of international practice that a neutral State is bound to abstain from furnishing supplies of this kind to a belligerent, whether in the way of commerce or otherwise. The United States, it is true, provided a glaring instance of a breach of this rule in 1870, in supplying the French with arms from their public arsenals; but their isolated position away from the company of European States has unfortunately rendered them frequently indifferent to the practice of European States in such matters. Moreover, the obloquy which this veritable scandal drew down on the offending nation sufficed to show the strength of international opinion against the practice. Now, if it be conceded that supplies of this kind are illegal if furnished by a neutral State, it is hard to see wherein the case differs when they are furnished by the subjects of a neutral State.
Lord Cockburn, whose whole argument before the Geneva arbitration was aimed against the existence of State responsibility for such acts, was fain to admit that “whatever obligations attach by the general principles of the law of nations to the State or community as a whole, are equally binding on its subjects or citizens. For the State or community is but the aggregate of its individual members, and what is forbidden to the entire body by that law is equally forbidden to its component parts. The State is bound to restrain its individual members from violating obligations which as a whole it is bound to fulfil.”
In this country the State has so far embodied this view of its duties in its practice that a subject acts contrary to its municipal laws who (while the State is in a position of neutrality)
(1) Supplies a belligerent with loans of money or with arms or munitions of war, if such supplies are made gratuitously (animo adjuvandi), and not in the course of trade (De Wütz v. Hendricks).
(2) Gives a belligerent the benefit of his personal services, whether gratuitously or not (Foreign Enlistment Act).
(3) Builds or equips a ship of war for a belligerent, whether as a trade transaction or otherwise (Foreign Enlistment Act).
It is only when we come to the question of the trade in arms and munitions of war carried on by neutral subjects with a belligerent State, that we find ourselves surrounded by an immense jungle of tangled verbiage and obscure phraseology, which serves to conceal the real principle of the matter from our gaze. Immense financial interests have so well watered and manured this jungle, and the sun of Mammon has shone encouragingly on it for so long, that its luxuriant vegetation almost shades the light of truth from the whole question. If the neutral subject is to be allowed to supply a belligerent with arms and munitions without let or hindrance from his State, why, it may be asked, has the legislature of this country so stringently forbidden its subjects from engaging, when neutral, in the trade in vessels of war with belligerent States, since a vessel of war is in fact, as Lord Stowell said, “a contraband article of the most noxious kind, but nevertheless only a contraband article”? The answer to this inquiry is to be found in the rough facts of the war of 1861, and of the Alabama controversy.
The sale of ships of war to a belligerent by a neutral subject unhindered by the neutral Government, turned out in practice to be a complete reductio ad absurdum of the