cation of law, it was the duty of this country to lay down sound principles, and act upon them, thereby letting subjects know what their duties really were.

Dr. CLAIR J. GRECE (Redhill, Surrey) considered that the true test of the harmony between municipal law and international obligations would be the test of consistency-viz., whether any part of a State, be it the smallest part (an individual), or any other part whatever (an association of individuals) should be permitted to do towards another State, or towards the representatives of another State (who, for international purposes, were the State itself), what the whole State itself would be debarred from doing; whether, for instance, any individual should be permitted to take steps against a foreign potentate, which, if taken by the State itself, would be an act of war and hostility, justifying the recall of an ambassador. That test would prohibit the fitting out of the Alabama, the equipping of vessels for attacks upon the representatives of foreign powers, and prohibit also such an act as the attack of Orsini, in reference to which this country solemnly refused to alter our law. The latter was mixed up with political questions; but still, notwithstanding any complications of that nature, he held that the test he had pointed out was the true and proper one to be applied, and that by which a satisfactory solution could be arrived at.

Sir E. CREASY (Chairman) said that the subject required to be fully and frequently debated. The remarks of the gentlemen who had spoken showed the importance of the topics to which they had referred. The general principle of the whole was that to which the gentleman who read the first paper addressed himself, namely, the demand made by one country upon another to alter its laws, because their condition in the opinion of, at least, the dominant State, was insufficient to give proper protection. Reference had been made to Belgium, but a much more marked instance was that arising out of the Orsini conspiracy, in 1858, against the life of the Emperor of the French. It was charged that some foreign conspirators, resident in England, had taken part in that conspiracy, and that one of the objects of the conspiracy was the death of the Emperor and of any of the persons who might happen to be near him at the time of the attack; also that preparation of deadly instruments was actually gone through in England in furtherance of that plan. Representations were made by the French Government to the English Government complaining that our law was not severe enough, and was not put in force. Debates upon the subject took place in Parliament, the speech of Mr. Sidney Herbert being of especial interest; and more than once the question was debated also in the House of Lords, Sir Richard Bethell, then the law officer of the Crown, taking a very prominent part in the discussion. It was asserted by many that conspiracy among aliens against the life of another alien, in a foreign country, was not within the rule of our law at all. By others it was maintained that it was nothing further than the common law of misdemeanour, and very slightly punishable; that it ought to be made a felony, and severely punishable. Lord Palmerston's Government brought in a bill for that purpose, but it was thought that the tone of the French Government in asking for this had been imperious,

So.

and that our independence was threatened. There was also a great deal of fear generally shown throughout the country; and a resolution was moved, not directly negativing the proposal contained in the bill, but censuring the course which had been taken by the Government in the matter. The result was the resignation of the Palmerston Ministry, and the dropping of the bill. Dr. Grece was not quite accurate in saying that England refused to do anything on the subject, because, within a very short time after public excitement had been allayed, a clause was introduced in the Criminal Consolidation Act, 22 and 23 Vict., expressly providing that offences of this kind should be punishable by a very long term of penal servitude, though not necessarily Therefore our law was free, at any rate, from the scandal of not providing against such things. When that provision was proposed, there was of course a great deal of discussion, in which reference was made to Peltier's trial at the instance of the French Government, and other proceedings; in fact, the reports of those debates were now a storehouse of very valuable information on this interesting subject. As had been truly said, they had before them an array of conflicting principles. There could be no doubt that every State had a right to security, and a right also to independence; but if the sovereign executive, whether called emperor, president of the republic, head of the senate, or anything else for there was no magic in these phrases indicating particular forms of government, so far as international law was concerned-if those who were high in power, and important persons in the State, were to have their lives schemed against by conspirators residing just across a narrow frontier, it was obvious that a very grievous menace was held out to the security of that State, and the tranquillity of the whole nation put in jeopardy. He did not say that there should be a demand, but there ought to be a remonstrance. Each State should insist on justice in its own territory, and should jealously guard against the interference of any other State with it. The complexity connected with the subject arose in Dr. Bernard's case and in the Alabama controversy, not to say anything of the Alabama award. With respect to the latter, there was valuable information contained in the books published by the British and American Governments, giving an account of the arguments brought forward in that arbitration, more especially those of Sir Alexander Cockburn in that memorable judgment which he delivered at the close of the proceedings. On one important point the majority of the arbitrators were flatly against England. Sir Alexander Cockburn maintained, in his judgment, with regard to the greater part of the case, that England had certain laws; that we had honestly applied those laws, and done our best, by every process we could command, to carry them out; and that we ought not to be made penally responsible for the consequences. The short answer of the other arbitrators was, that they cared nothing about our laws, and that if they were not sufficient to prevent these breaches of international law, they ought to be made sufficient. There was a broad distinction between the sufficiency of our law on the subject-the law proper in the strict sense of the word—and the sufficiency of our process with which we carried them into effect. There was a

distinction between the subjective law, which forbids a thing, and the objective law, which prescribes the process by which it is to be carried into force. With respect to the former, he did not think that a State was allowed to let subjects plan crimes against neighbouring States; but it was a different matter when the insufficiency of the process was complained of. In the United States and other free countries, you could not arrest a man without showing a good and fair reason, nor could you bring him to trial on mere suspicion. You could not question him so as to make him commit himself. On the contrary, a fair and reasonable case must be produced against him before he could be committed or dealt with; and, above ail, he must be tried by a jury. Dr. Bernard was tried by a jury. Mr. Edwin James defended him with a flaming speech, which appealed to the passions, and he was acquitted. Many valuable points of law were reserved, but unfortunately they never came on. When it was objected, 'You have not been sufficiently vigilant or strict in arresting people,' the answer was made, 'We have no evidence upon which we may bring up this man for trial; it is against our principle, and against our common sense, to bring men for trial before a jury, when we know perfectly well that they would be acquitted, and that their acquittal would only bring scandal on the administration of justice. of justice.' As regarded laws of criminal process, he must maintain that a nation that made a complaint against another nation ought not to be allowed to wholly ignore those laws, and say, 'We do not care about trial by jury, we do not care about your Habeas Corpus Act, or whether your law requires direct testimony, whether you arrest on suspicion, or whether, as in continental countries, the officer who arrests by order of the Government is always protected from the consequences which may ensue.' That was in effect tantamount to saying, 'You ought to turn your Government into a despotism; you cannot he said to have taken every measure for coercing persons who attempt this sort of actions, so as to bring them speedily to trial. Some writers of high eminence went to the length of saying that countries ought to be made responsible for the verdicts of the juries. That was the extent to which the doctrine was pushed on the opposite side. There were, however, extremes on both sides of this question. It was not an absolute excuse for a nation to say, in self-defence,' The process of our Government is not sufficiently strong; it is weak.' No, that excuse could not be accepted. There was nothing like taking an instance of fact. Everybody would recollect the Greek massacre and Don Pacifico's case. Lord Selborne laid down the law on the subject in a most clear and full way, when he called attention to it in the House of Commons in 1870. What he said was, that 'A State is bound to have a bonâ fide and settled Government capable of repressing violence, outrage, and crime in that manner and in that degree in which human governments and civilised countries ordinarily are capable of discharging those functions.' If a State had not got such a government it ought not to be allowed to tell England, the United States, or any other free country, with regard to acts done by their subjects that injured that State, 'You must abolish trial by jury,' because that would be straining international law and

justice too far. Therefore, the matter might be put thus: the injured State, with a fair and colourable reason for injury, had a right to say to the one within whose shores the offending persons had been residing, ‘I cannot be told that you have not got proper laws. If your laws are not sufficient, you ought to have them made sufficient.' But it had no right to say, 'We desire you to ignore all your country's institutions, and to use a more summary process than you do at present; we desire you to do on our behalf what you could not do in your own behalf, with regard to any member of your community.' As to the harmony of municipal law with international obligations, he believed, with Sir Alexander Cockburn, that that harmony already existed in England, for, as Sir Alexander emphatically declared in his judgment in the Alabama case, international law was part of the common law of England; that as soon as that common law was declared and settled by proper authority, it, in a manner, became part of the international law and part of the municipal law of this country, and that a man who broke it was amenable to tribunals of this country. Had the points reserved in Dr. Bernard's case come on, the question would no doubt have been solemnly adjudicated, but from the fact of the acquittal it was not settled. Sir Alexander Cockburn's reasoning on the subject was as powerful as his language was beautiful. With regard to the extradition of criminals, there did not appear to be much practical difficulty, because he held with Sir George Cornewall Lewis and other writers, that the extradition of criminals was not a matter of absolute international law, but was a mere matter of comity of nations. No nation could be required, as an obligation arising from international law generally, to give up criminals in any case. It was a question for the comity of nations to settle by treaty contract between the various great Powers. Of course it was open to them to introduce any stipulations in the treaty that were considered reasonable. But no doubt there were a great many points still unsettled. The thanks of the civilised world were due to those gentlemen who had devoted their time and energies to the subject, and none were more entitled to gratitude than Mr. Dudley Field, the eminent jurist. He was far from saying that he agreed with all the views of that gentleman, and far from saying that he would give his vote for passing the whole of the code of nations which Mr. Field had prepared with so much skill and judgment; but it was impossible for him to refrain from expressing the obligations which all who had considered the subject must feel towards those gentlemen who, with independent minds, honestly studied it in all its bearings, at the same time having proper deference to authority, and not setting up crotchets of their own in the place of established opinions, without first carefully examining them. But with such a safeguard, it was hoped that much might be done by honest search pursued in the spirit of independence on the part of the great minds of this country, the United States, Germany, Spain, and Italy. By such means many a dispute was now settled by fair and reasonable argument, whereas, according to the old, hasty, and rough method, international differences led to great bloodshed, and spread untold misery over large portions of the world.

Right of Belligerents to capture Private Property at Sea.* By FRANCIS P. LABILLIERE, Barrister-at-Law.

SHALL not attempt to touch upon the larger question whether international arbitration may be expected successfully to prevent or to limit the occurrence of war. I shall assume that that terrible scourge may occasionally afflict mankind, and confine my attention to the consideration of how in one important particular its evils may be mitigated.

I not to fitutio the que

As the more civilised times in which we live have been approached the tendency has been to circumscribe the ravages of war—to spare the civil population, peaceful men and helpless women and children, from the ruin and misery occasioned by the conflict of armed forces. Every change in international law has been in the direction of establishing strict neutrality on the part of non-combatants, and the usages of modern warfare have been progressively improving the treatment of each other's subjects by belligerents.

To see how far we have got from the ideas of neutrality held in comparatively recent days, we have only to turn to Vattel, who declares that a neutral may permit levies of troops in favour of a particular power,' and that the other belligerent cannot even demand as matter of right that the like favour should be granted to him.'

War on land has been reduced as far as seems compatible with the carrying on of military operations to a duel between contending armies; and what I now submit is, that war at sea should be placed upon a similar footing-that such plunder and destruction of private property as armies may not commit shall be forbidden to armed vessels. The usages of civilised modern warfare only sanction the destruction of private property on land where it is absolutely necessary for the purposes of military operations; and an invader may impose requisitions to supply his army, for otherwise it might be starved out of the enemy's country. In the last two great wars—those between Prussia and Austria and Germany and France-I believe the rule of paying the inhabitants of the invaded territories for the supplies they were required to provide was strictly observed. If this be a sound principle on land, no amount of fine-drawn

* See Transactions, 1868, pp. 146-167.