of a possible re-marriage is merely the contemplation of a future ecclesiastical offence. Consequently, the tendency of most jurists will probably be to prefer the judgment of the Court of first instance, which refused the decree. The reservation must be made that if the contemplated causes of separation were not canonical causes (e.g., "incompatibility"), the above argument would naturally not apply.

The Panama Canal.

An eloquent and influentially signed circular has been issued on this subject in America. Messrs. Choate, Root, White and their colleagues, are entitled to the utmost credit for the courage and straightforwardness with which they impress on the American public the desirability of the United States standing loyally by their engagements. But it is perhaps not ungenerous to remark that they are scarcely justified in all their historical statements. The summary of the Clayton-Bulwer treaty of 1850, with which the document opens, is superficial to a degree. For it is not the fact that the principal concern of that treaty was with "an Isthmian canal." Its principal concern was with a Nicaraguan canal. In respect of the construction of such a canal, Britain was entitled to be heard; for she had a quid pro quo to give. The only possible western exit of the canal-the mouth of the River St. Juan-was colourably alleged to be in the hands of her allies the Mosquito Indians. With the construction of a Panama canal she had nothing to do. Only a pious, and entirely vague, aspiration was thrown into the concluding clause of the treaty, expressing a desire that any canal to be constructed in the future between the two seas might be subject to a similar régime of joint equality.

Nor is it true to say that the diplomacy of the United States from 1850 to 1912 always understood it so. Mr. J. G.

Blaine, writing in the course of his discussion with Lord Granville in 1881, observed to the U.S. ambassador in London (29th Nov. 1881):

"Art. VIII does not stretch the guarantees and restrictions of Art. I, over either the Tehuantepec route through Mexican territory, or the Panama route. through Colombian territory. It is in terms, an agreement to extend the protection of both countries by treaty stipulations, to those or any other practicable waterways or railways from ocean to ocean across the isthmus, outside of Central America."

And this he styles "a vague and unperfected compact," which it undoubtedly was.1 Moreover, there was no attempt to apply the provisions of the Clayton-Bulwer Treaty to the Panama Railway. And Mr. Frelinghuysen (8th May, 1882) shows clearly that Art. VIII is altogether executory and indefinite.

So far as definite obligations were concerned, the treaty only concerned the construction of a canal in Nicaragua, and the mutual renunciation of control in "Central America." "Central America" had a perfectly definite meaning; it meant the territory which had quite recently been officially known as "the Republic of Central America," i. e., Guatemala, Honduras, San Salvador, Costa Rica, and Nicaragua, excluding Panama, with the isthmus, and the rest of Colombia. The whole of the treaty, including the preamble, concerns nothing but this Central America, and a

2

1 Mr. Blaine does not shine as a prophet in the despatch of 24th June 1881. He refers to Britain's maintaining "a vast naval establishment which

we do not need, and in time of peace shall never create." It has been created. He says: "In only a single instance during the past 100 years have the United States exchanged a hostile shot with any European power. It is in the highest degree improbable that for a hundred years to come even that experience will be repeated.' What was in the highest degree improbable to happen in a hundred years happened in seventeen. He remarks "Between the United States and the other American republics there can be no hostility, no jealousy, no rivalry, no distrust." Wonderful!

2 See Sir H. Bulwer's despatch of 6th Aug. 1850. (State Papers, vol. 40, p. 1043), where this express definition is given.

Nicaraguan canal. The only exception is that in Art. VIII the treaty powers agreed "to extend their protection" to any isthmian canal or railway, especially if made viâ Panama, subject always to the owners making fair charges and allowing it to be used on equal terms. The language is very confused, but there is certainly no clear undertaking by either power to secure equality.

It may also be gravely doubted whether the ClaytonBulwer Treaty of 1850 was made "at the request and on the initiative of the United States." After Lord Palmerston had authorised its signature, the British Minister in Washington was still writing home that, "Mr. Clayton entertains a strong hope that the President" would shortly authorise its signature on behalf of the Republic.1 This does not look like American pressure.

When the Hay-Pauncefote treaty was in 1901 substituted for the Clayton-Bulwer treaty, it did not enlarge its scope. Its provisions were implicitly limited, as those of the other had been, to the Central American canal which Britain, through the Mosquitos, might have blocked, and did block. The treatment of canals south of " Central America" was left in 1901, as in 1850-as was proper-to be the subject of future bargaining, with a leaning to the side of equality. It would seem, therefore, that the United States are under no definite treaty obligations as far as the Panama Canal is concerned. They could have constructed it in 1899 without in the least impairing their vague undertaking of 1850. The vague Art. VIII of 1850 was really directed against private monopolists: neither Britain nor the States would be bound to protect them if they made unfair charges. The States, that is, agreed to protect a fair canal: they by no means precluded themselves from constructing a monopolist one. It was, in fact, in view of a projected Nicaraguan Canal that they obtained the Treaty of 1901. That the

1 Bulwer to Palmerston, 31st March 1850 (State Papers, ubi sup., p. 1021).

Article is referred to in the preamble of the Treaty of 1901 is no argument against this contention.

The official reply of their Government to Sir E. Grey's expostulations does not take this ground. Ignoring Mr. Blaine and all his works, it merely observed that until the tolls are actually fixed, it is too early to complain that they may prove to be unfair. The Secretary of State takes precisely the position indicated in these pages last November as the correct one. If the charges on shipping generally are no higher than is proportionate to the cost of construction. and maintenance of the works, their remission in certain cases is nothing but a subsidy, which comes out of the United States' own pocket, and to which no one can in reason object. This, nevertheless, cannot justify the total exemption of "coasting" trade.

The Adriatic Naval Demonstration.

The rather futile efforts which are being made to induce Montenegro to release her grip of Scutari-which should, of course, be Albanian-by excluding arms and troops from her ports, are entirely without justification, except as measures of war. If we are at war with Montenegro, well and good; we know where we stand. If not, the following propositions are axiomatic: (1) We cannot interfere with the ships of foreign nations destined for Montenegro. (2) The commander of a British ship which should interfere with our own vessels so destined, would be liable to damages, or might be restrained by injunction. For a further discussion of such measures as this, the reader is referred to L. M. & R., Vol. XXIII, p. 106, dealing with the case of Crete. It may be added that the stoppage of arms and troops alone can in no case be effected by a blockade, which must (The Franciska, 4 W. R. 100) be universally applied, if it is to stand good.

It is of the essence of a blockade that neutrals should readily be able to judge from observed facts whether it still subsists or not. This they cannot do, if some craft are constantly passing in and out of the so-called "blockaded" port. The stoppage of arms and troops for a particular littoral may or may not be justified, according to circumstances. One is, of course, justified (in International, if not in Municipal law) in stopping one's own ships. There is no possible justification in stopping the ships of third powers, or of the littoral affected. War is the only sanction of such violence.

These remarks apply on the supposition that the so-called "blockade" consists merely in turning back troops and munitions of war. If, as later advices suggest, there is a general exclusion of commerce as well, we have an ordinary case of so-called "pacific" blockade. This, it is generally admitted, cannot affect the ships of third parties, and it is probably tantamount to war against Montenegro. (Cf. L. M. & R., Vol. XXI, p. 285.) How far such a measure would affect British vessels has never been decided. Presumably, since the Crown would disclaim the existence of a state of war, no interference with them could be legally justified.

A Great Jurist.

As we go to press, word comes of the decease of Mr. John Westlake, K.C. Professor Westlake-for he will always be "Professor" in the minds of his old Cambridge pupilswas not only a distinguished lawyer: he had a spirit open to the appeal of every humane and liberal cause. His vast stores of learning were available to the inquiries of the veriest tyros in juridical science. His saturation in the legal atmosphere of Continental thinkers was (especially in a practising barrister), amazing. His sanity and balance were no less remarkable than were his enthusiasms. He protested equally against the Russian coercion of Finland and