been done in pursuance of the contract as validly done, but relieves the parties of further responsibility under it."

By sub-sect. I of sect. 1 of the Legal Proceedings against Enemies Act 1915 (5 Geo. V, c. 36), leave may be given to issue a writ of summons in the High Court for service on an enemy out of the jurisdiction, or of which notice is to be given to an enemy out of the jurisdiction, if the Court or judge is satisfied that the case is a case to which the section applies, and the Court or judge may, as and in manner therein mentioned, make an order (in the Act referred to as an enemy service order) directing substituted or other service of the writ or the substitution of notice for service by means of advertisement or otherwise; and on that order being complied with, all proceedings may be taken on the claim as if the writ had been served on the enemy defendant by the usual means.

And, by sub-sect. 5 of sect. I, the fact that, for the purpose of obtaining the benefit of the said section, a writ of summons has been endorsed only with a claim for a declaration in accordance therewith, shall not prevent any other declaration or any consequential or other relief being claimed in other proceedings, or prevent the case being dealt with, although no such other declaration or consequential or other relief is claimed.

By sub-sect. 6 of sect. I, the latter section applies to cases where (a) the plaintiff is a British subject and is entitled for the time being to bring an action in the High Court; and (b) the defendant or one of the defendants is an enemy; and (c) the writ is endorsed only with a claim for a declaration as to the effect of the present war on rights or liabilities of the plaintiff or defendant under a contract entered into before the outbreak thereof; and (d) there is written evidence of the contract.

Jus.

447

IV. INTERNATIONAL LAW AND THE LAW OF THE LAND.

THE

HE present war has brought before the Courts for decision many cases in which questions of International law arise, and as time goes on these cases will doubtless increase. In connection with such cases, there emerges a question which has hitherto been mainly of academic importance, but which has now become a matter of real practical interest, and that is the relation between International law and the ordinary law of the land. Is International law a part of the ordinary Municipal law, and, if so, to what extent? Now, there are not wanting jurists who declare that, in relation to Municipal law, International law occupies a position of pre-eminence, and that consequently the rules of International law are superior to those of Municipal law, and that municipal Courts must apply such rules even in cases in which they conflict with the rules of Municipal law. It will be necessary in the present short study only to consider the matter in its broader outlines, as the whole question has been elaborately dealt with in Mr. Cyril M. Picciotto's book,' which we propose to examine in detail before concluding our observations on the subject.

The matter of most concern to us is naturally the relation between International law and the law of England, and to this subject the greater part of the following remarks will be addressed. At the same time, a comparison of the attitude taken on this matter by the Courts of the Great American Republic cannot but afford interest to English lawyers, so that we shall add a short note on the way the

1 The Relation of International Law to the Law of England and the United States. By Cyril M. Picciotto, with an Introduction by Professor Oppenheim, London: McBride, Nast & Co., Ltd.

LL.D.

matter has been dealt with by the Legislature and Courts of the United States.

Blackstone, writing in 1765, gave his opinion in the following words :

"Since in England no royal power can introduce a new law or suspend the execution of the old, therefore the law of nations (wherever any question arises which is properly the subject of its jurisdiction) is here adopted in its full extent by the Common law, and is held to be a part of the law of the land. And those Acts of Parliament which have from time to time been made to enforce this universal law, or to facilitate the execution of its decisions, are not to be considered as indicative of any new rule, but merely as declaratory of the old fundamental constitution of the country, without which it must cease to be a part of the civilized world.”1 How far Blackstone's views are accepted by the English Courts at the present day will be apparent from a comparison of the above extract with the judgment in The West Rand Central Gold Mining Company v. Rex, noticed below. Blackstone's assertion amounts to this: that International law is adopted to its full extent by the Common law and is part of the law of the land-a part of "the old fundamental consititution."

Sir Alexander Cockburn, in his judgment in the famous Alabama controversy, settled at Geneva in 1872, said:"As Great Britain forms part of the fraternity of nations, the English Common law adopts the fundamental principles of International law and the obligations and duties they impose; so that it becomes, by force of the Municipal law, the duty of every man, so far as in him lies, to observe them, by reason of which any act done in contravention of such obligations becomes an offence against the laws of his country."

The idea that International law is per se part of the English Common law is very prevalent. For example,

1 Book IV, ch. 4.

2 See Taylor, International Law, p. 88.

Scott accepts this view, and adds that, as part of the English Common law, International law

"passed with the English colonists to America . . . when in consequence of a successful rebellion, they were admitted to the family of nations, the new republic recognised International law as completely as International law recognised the new republic. Municipal law it was in England, Municipal law it remained and is in the United States."l

In the case of The Queen v. Keyn (L. R. [1876], 2 Ex. D. 63), in the course of his judgment dissenting from the opinion on the point at issue of the majority of the Court, Lord Chief Justice Coleridge said :—

"The law of nations is that collection of usages which civilized States have agreed to observe in their dealings with one another. What these usages are, whether a particular one has or has not been agreed to, must be a matter of evidence. Treaties and acts of State are the evidence of the agreement of nations and do not in this country, at least per se, bind the tribunals. Neither certainly does a concensus of jurists; but it is evidence of the agreement of nations on international points; and on such points, when they arise, the English Courts give effect, as part of English law, to such agreements."

It will be seen that the learned judge here practically agrees with Blackstone's opinion, although he requires evidence to prove that the usages making up International law have been agreed on by civilised States. His remarks as to the position occupied by treaties are worth noticing.

The question as to the relation between International law and the law of England at the present day came before the Court in The West Rand Central Gold Mining Company Limited v. Rex (L. R. [1905], 2 K. B. 391), one of the contentions of the petitioners in that case being that International law constitutes a part of the Common law of England. Lord Alverstone, C.J. (in delivering the judgment 1 Cases on International Law, p. v.

of himself and Wills and Kennedy, JJ.), dealt with this point by declaring that it is true that whatever had received the common assent of civilised nations must be taken to have received the assent of England; and that rules which had been so assented to might properly be called International law, and would in that character be acknowledged and applied by English municipal tribunals when occasion arose for them to decide questions to which International law might be relevant. But, in order to admit of this, such rules must be shown to be actually accepted as binding between nations, and the International law sought to be applied must, like anything else, be proved by satisfactory evidence, which must show either that the proposition put forward has been received and acted upon in English Courts, or that it was of such a nature, and had been so widely and generally accepted, that it could hardly be supposed that any civilised State would repudiate it.

The mere opinion of jurists, however eminent, that it ought to be so received, would not in themselves suffice to show that a rule was binding. It must have received the express sanction of International agreement, or it must gradually have grown to be part of International law by frequent practical recognition in the dealings of States with each other. The statement, added his lordship, that International law forms part of the law of England ought therefore to be treated as correct only if this term is understood in the sense and subject to the limitations indicated.

From this it will be seen that the modern English view is that International law, before it can claim recognition by the Courts of this country, must be proved to have been previously received and acted on by English Courts, or else that the particular rule of International law in question must be shown to have been so generally accepted that it could not be supposed to have been repudiated by England as a civilised State.