Foreign Enlistment Act.

Several recent decisions with regard to foreign enlistment require notice. Major Spilsbury, who was charged with an alleged breach of the Foreign Enlistment Act by conducting the Tourmaline expedition into the territory of Morocco, succeeded in his appeal to the Privy Council for a trial by jury at Gibraltar, where he has since been acquitted. In Burrows v. Rhodes, a trooper who took part in the raid into the Transvaal, sued for damages for fraudulent misrepresentation, by which he was induced to enter the service of the British South Africa Company and take part in the raid, under the impression that it was a legal service, and for consequent wounds, imprisonment, and liability to punishment for breaches of the Foreign Enlistment Act: and a demurrer by the defendant that there is no contribution between wrongdoers and a person who had committed a criminal. offence could not recover compensation from any one for the consequences of this criminal act, was overruled. seems only reasonable that a man who is induced to do an illegal act by the representations of another should have a remedy against him if he bonâ fide believes at the time that the act is legal.

It

The case of the United States v. Pelly raised a question, already discussed in these columns (vol. xxiii. 384), as to what was the actual point of time at which the SpanishAmerican war began. A British shipowner undertook to sell ships to the American Government, to be delivered as soon as possible, and had received a deposit of part of the purchase money on condition that if the United States became belligerent or any other cause prevented the delivery, the contract should become void, and the vendor should retain the deposit. The contract was signed on April 22; on April 21 the American fleet sailed from Key West for Cuba; on April 22 it captured the Spanish Buona Ventura,

and the American President issued a proclamation declaring a general blockade of Cuba. The British Government, on April 26, published a proclamation of neutrality, and the earliest date at which the ships could have been delivered was April 23. It was held, in accordance with the rule of international law, that war begins with the first act of hostility and not when its existence is notified by a belligerent or neutral government, that the shipowner was “prevented" from delivering the ships by the Foreign Enlistment Act.

The Anglo-French Nile Convention.

The Declaration lately agreed to between England and France, which lays down the principle on which the French and British spheres of influence in Central Africa are to be delimited, seems likely to be the last of the arrangements made between European Powers with regard to their respective shares of the African continent, which have been so frequent since 1884. By its terms France obtains for her sphere of influence Wadai, Bagirmi, Kanem, and Tibesti, regions lying south-east, east, and north-east of Lake Chad, and England the Bahr-el-Ghazal and Darfûr; and the delimiting line is to be drawn from the point where the boundary between the Congo Free State and the French Congo meets the water-parting between the Nile and Congo along that water-parting to its intersection with 11° N. lat., thence to 15° N. lat. in a course somewhere between 21° and 23° E. long, thence along 24° E. long. to a point south-east of a line drawn from the intersection of 16° E. long. into the tropic of Cancer, and thence along that line to that tropic. The Declaration is expressed to be an integral part of Art. IV. of the Niger Convention of June 14, 1898; and Art. IX. of that Convention is made applicable to the regions.

extending from the Nile to Lake Chad, and between 5° N. and 14° 20' N. lat., the effect of which is that the two Powers mutually concede equality of commercial treatment in these limits for thirty years, at the end of which either party may denounce this part of the Convention.

This result is satisfactory from the point of view of international law, France having her rights recognized over territory unclaimed by any other Power; and England, on behalf of Egypt, obtaining the recognition of the prior Egyptian claim to territory which undoubtedly, up to recent times, belonged to Egypt, and is geographically part of the Nile basin, and also, on her own behalf, obtaining a recognition of her claim to include the whole Nile valley in her sphere of influence, a claim already admitted by the other conterminous States-Germany, Italy, and the Congo State. And it is also satisfactory, from the British point of view, as upholding the titles in international law, on which the British Government based its own claim and that of Egypt to the Upper Nile Valley, viz. (a) revival of Egyptian sovereignty; (b) conquest from the Khalifa; (c) acquiescence in the British and Egyptian titles thereto, as recognized in treaties between England and States other than France. The French title, viz. that the territory in dispute was res nullius open to the first comer, and that first comer was the Marchand expedition, was not seriously pressed, for France had based her objection to the lease in 1894 by Great Britain to the King of the Belgians of the Bahr-el-Ghazal on the ground of its still belonging to Egypt, and it was not disputed that the French occupation of Fashoda was not one which could have been effectual against the Khalifa's forces. The reason for the putting forward of several titles by the British Government was, no doubt, a precautionary one, and there is nothing in international law any more than in municipal law to prevent a party putting his claim alternatively or cumulatively; but the circumstances under which the titles

were severally put forward, show that they are really more supplemental than alternative to each other.

:

As regards title (a) it is hardly necessary to say that the question, whether a former sovereignty over territory from which that sovereign has withdrawn for an appreciable period of time still continues to exist and is revived by subsequent reoccupation, depends on the nature of the evacuation, and whether it was definitive or merely temporary spe redeundi. This is a question of fact, which is chiefly decided by the length of the evacuation, the cause of it, and the intentions of the former sovereign with regard to the territory as shown by his conduct. It is said that after a compulsory abandonment stronger proof of an effective intention to return must be given than on the occasion of a voluntary abandonment, and that the effect of a mere claim based on former possession if valid at all will soon cease (Hall, International Law, 121). A case similar in circumstances to the present is that of Santa Lucia it was occupied by the English in 1639, but they were massacred by the Caribs in 1640, and for ten years no attempt was made to recolonize it. In 1650 the French took possession of it as unappropriated; they were attacked in 1664 by Lord Willoughby and driven into the mountains, where they stayed till he left the island three years later, and then reoccupied their lands. At the peace of Utrecht the island was treated as neutral, being then in possession of the Caribs, the French having died out; after the treaty of Aixla-Chapelle the question of its ownership was referred to Commissioners, and the arguments urged were the same as in the present case; but finally, at the peace of Paris in 1763, the island was assigned to France (Phillimore, International Law, ii. 308; Hall, above). In the present case Egypt, though admitting that she withdrew under force majeure, declared she had never lost sight of the reoccupation of the lost provinces; and Lord Salisbury, while similarly admitting that

the Egyptian title to the banks of the Nile had certainly been rendered dormant by the Mahdi's military successes, took up firm ground in declaring that that fact was "no ground in international law for asserting that a dispute of title which had been inclined one day by military superiority in one direction, and a few years later in the other, could give any authority or title to a third party to come in and seize the disputed region as vacant or relinquished territory." In the Santa Lucia case the length of evacuation was some twentyfive years, and the attempt at recovery was never completed; and these facts sufficiently distinguish it from the present

case.

As regards title (b)-conquest-this was put forward partly as an alternative, partly supplemental; alternative, in that it would have met the case of a French claim to any territory subject to the Khalifa which had not been part of Egypt; supplemental, as reinforcing the title of reoccupation. "By the military events of last week (Omdurman) all the territories which were subject to the Khalifa passed by the right of conquest to the British and Egyptian Governments. . . . Fashoda passed as a dependency of the Khalifate.... Whatever impediment or diminution the title of Egypt to the valley of the Nile might have suffered through the conquest and occupation of the Mahdi, was removed by the victory of the Anglo-Egyptian army. . . . The amount of right, whatever it was, which by the Mahdi's military successes had been alienated from Egypt, has been entirely transferred to the conqueror.... To the last the power of the Dervishes extended as far south as Bor, and their effective occupation did not cease till Omdurman." The argument is thus a dilemma: the country either belonged to Egypt or to the Dervishes who occupied it; in the former case Egypt reconquered what belonged to her; in the latter case, Egypt conquered a territory from its possessors: in neither case was the territory

vacant.