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as between the son whose second Christian name was Forster and the son who did not bear the name of Forster, and that therefore parol evidence was inadmissible, and that William Forster Charter was the executor and devisee de. noted. But, Lord Chancellor Cairns and Lord Selborne held that it being clear that the name Forster Charter was written. in mistake, the Court had a right to ascertain all the facts which were known to the testator at the time he made the will, and thus to place itself in the testator's position in order to ascertain the bearing and application of the language he used in the will, and on this evidence held that Charles Charter was the executor and devisee denoted. The judgment of the Court below was thereupon affirmed.
During the passage through Parliament of the Public Worship Act, 1874, there being a difficulty in securing a judge to preside in the Court to be established under the Act, Lord Penzance intimated to Archbishop Tait that he was restored to health and was now desirous to have some regular judicial work, and quite able to undertake it, and would be prepared to undertake the duties of judge to be appointed under the Act. He was accordingly offered the appointment, on the passing of the Act, by Archbishop Tait and Archbishop Thomson, on the ground of his having proved himself to be an able and an accomplished judge. He accepted it, and his judgments during his term of the office have been generally approved and affirmed by the Judicial Committees of Her Majesty's Privy Council.
Lord Penzance died on December 9, 1899, at Eashing Park, Godalming, where he had resided for many years, in the. eighty-fourth year of his age. In 1860 he married Mary Pleydell-Bouverie, daughter of the third Earl of Radnor, who survives him without issue.
Upon the Editor requesting me to write an article in. Memoriam of Lord Penzance, I acceded to his request with pleasure. I have written of him as I found him, and in case:
it may be supposed that I have written of him as I have done under the influence of private friendship, I should state that I never once met him in private life, and that the only communications I had with him in private throughout the ten years that I practised in his Court, during the first six of which I was one of the Court reporters, arose from my being reporter of his judgments, and a junior counsel in frequent practice before him.
After his retirement from the Bench I sometimes casually met him, when he invariably gave me a kindly welcome, and made inquiries after the other members of his old Bar.
T. H. TRISTRAM.
VII.--CURRENT NOTES ON INTERNATIONAL
The Transvaal War.
In the swift march of recent events, discussion as to the existence of a genuine casus belli with the Transvaal has, for the time, become a little stale and unprofitable. But when the history of the affair comes to be written, the point will certainly have more than academical importance. Professor Westlake's pamphlet * is, therefore, of more than ephemeral interest. The necessity for compressing the subject within the scope
of one lecture has resulted in a slenderness of treatment, inappropriate to the magnitude of the question at issue. The author's eminence as an international jurist, and the fact that he has acted as legal adviser to the Government on concrete points involved, renders his survey of the situation deserving of more than passing attention. The conclusion at which Professor Westlake arrives is somewhat curious.
* The Transvaal War. A lecture delivered in the University of Cambridge on Nov. 9, 1899, by J. Westlake, Q.C., LL.D. Second edition (University Press).
It is best indicated at p. 20 of the pamphlet. After a cursory examination of the possible “legal” grounds for British warlike intervention, i.e. (1) the alleged breaches of the London Convention; (2) the Uitlanders' claims of grievances to individuals; and (3) the franchise question, Mr. Westlake expresses the view that none of these things “have been such as could be made a cause for war. They have either been such as we could not make at all against a stronger foreign country, in which the same circumstances occurred, or they have been claims for which, the facts as regards them being disputed, the true remedy would have been arbitration." On the other hand, he strongly contends that the exigencies of high policy clearly justified war. “It does seem to me,” he says (p. 20), “ that there is very great reason for contending that it (the Transvaal Government) has systematically acted in such a manner as to constitute a grave danger, which entitled this country to throw the letter of the Convention aside, and to demand relief from a situation which had become intolerable.” In support of this view he lays special stress upon the persistent endeavours of the Transvaal Government to infringe the spirit of the London Convention—its ostentatious coquetry with Germany—its continuous policy of commercial hostility to the Cape Colony, culminating in the threatened closing of the Vaal Drifts in 1895, and its excessive increase in armaments both before and since the Jameson Raid.
The weak point in Mr. Westlake's reasoning seems to us to be his attempted differentiation between the legal and political considerations at issue. It is very difficult, and in these days somewhat impractical, to make such a distinction. The old theory that International Law concerns itself, amongst other things, with the grounds of justification for war, is hardly consistent with the modern view of the nature of that science. We may surely relegate such a theory to the
philosophy of past times, when the sanctity of International Law was attributed to a jus naturale. The adequacy of a cause of war must ultimately be a political question, with, of course, moral aspects.
We are disposed to think that Mr. Westlake underrates the question of "redress for grievances to individuals." This was not merely (or even mainly) a question arising on the Convention of 1884, but rather one connected with the obvious right and duty of a State—as well on grounds of expediency, as of morality—to protect its subjects in a foreign State from gross and persistent oppression. The history of the nineteenth century is full of instances of intervention in such cases. We fail to see that the justification for such intervention is lessened, as Mr. Westlake seems to suggest, because on grounds of obvious political expediency, we might well, in dealing with a great Power, be more loth to carry the question to the fighting point, than in quarrels with weaker States. And why, again, should "the true remedy have been arbitration"? From the point of view of International Law, we can recall no precedent in which arbitration has ever been suggested as a means of settling such an accumulation of grievances, coupled with what Mr. Westlake admits to have been a general political “situation which has become intolerable." The ideal beauty of the arbitration principle can hardly blind one to its inapplicability to such a unique case. We fear that even article 16 of the Act of the Hague Conference hardly contemplated such wholesale arbitration of differences as the Transvaal question involved. It would have necessitated a permanent tribunal sitting de die in diem to check the daily diplomacy, executive government, and administration of justice in the Transvaal. We are disposed to think that any arbitration on concrete points in dispute must in the end have resolved itself into the kind which Mr. Westlake thinks was intended by President Krüger in his dispatches (see p. 3), and which could not, under the
circumstances, have been adınitted by us, i.e. “arbitration on the general interpretation of the relations" of the two Governments.
The distinction between “legal” and “political” differences with reference to arbitration was admirably pointed out by Mr. Westlake, in his article in the International Journal of Ethics for October, 1896; but there is a real difficulty in accurately discriminating between such differences in actual controversies, and in none more than in this dispute with the Transvaal.
With most of Professor Westlake's remarks on the London Convention we cordially agree. The attempt to interpret it "under the assumption of a vague suzerainty” has been most unfortunate. That in a technical construction of the Convention, some sort of "suzerainty" was retained, is indisputable, but the term is an elastic one, and reliance on it in practical politics, in the presence of so many more concrete and substantial issues, has proved somewhat futile and perhaps a little aggravating. From the point of view of a lawyer, the Convention has always struck us as a most unhappily framed document. If any real intention to safeguard the rights of future British settlers in the Transvaal animated the framers of the treaty, they seem to have sadly lacked either ordinary prescience, or skill in draftsmanship, or both. Article 14, which alone purports to carry out any such intention, seems to us to have altogether inadequately provided for most of the serious questions which have since arisen. We confess that on the ordinary principles of legal interpretation of treaties, it would seem most difficult to construe, as breaches of the letter of the Convention, either the Dynamite concession, the closing of the Drifts, the refusal of the Franchise, the delay in submitting treaties for the Queen's approval, the Education question, the exclusion of foreigners from acting