as indispensable for the support of their armies in the field, it was unreasonable to deny to maritime Powers a similar right of seizing an enemy's property at sea.' Sir Travers Twiss advanced a similar argument. But the assimilation of the rule at sea to that on land would not confer any greater immunity to property afloat than on shore, so that all the rights of requisitioning vessels and supplies would be retained; and still a great and beneficial change would be effected even were no compensation given, as it is on land, to private owners. It would be no small improvement if, capture and confiscation being still in all cases allowed, the burning of ships and other private property which an enemy may not be able to carry off were prohibited. A belligerent might be permitted to proclaim that all vessels of his enemy found in certain waters should be seized, if he had reason to believe they were aiding or bringing supplies to forces opposed to him. Such a prohibition would be in the nature of a blockade, which might be instituted against a belligerent by mere proclamation, without it being required, as the resolution submitted at the Hague expressed, that the blockade should be effective, as it must be against neutrals. All the rules with respect to carrying contraband of war might also be more rigidly applied against a belligerent. Sir Travers Twiss is stated to have entered into nice distinctions about the essential differences of principle between enemies' ships and enemies' merchandise,' and as to a ship being an extension of an enemy's territory.' But with all deference to such a high authority, I submit that this question should not be decided on such mere technical grounds and subtle distinctions, but upon great and broad principles. Much learned lore has been urged against every improvement in international law. But the proposed change will, I believe, more and more commend itself, by being in harmony with the spirit of these improvements; by being dictated by the highest principles of humanity and civilisation; by being advantageous to the great majority of nations, whether as neutrals or belligerents; and last, but not least, by being particularly beneficial to the interests of the whole British Empire. On the Codification of International Private Law. A F By S the codification of International Law has recently been treated with great interest, I avail myself of this opportunity to consider the effects of International Private Law as distinguished from the other. Regarding the first, I will leave any comments to those eminent jurists who are qualified by their special studies to treat a subject of such extraordinary importance concerning independent Sovereign States. It is evident that the suggested codification of Private International Law concerns the intercourse of the communities of several foreign countries, particularly in mercantile matters. I say advisedly in mercantile matters, because it could have no reference to any other part of the laws regulating things or subjects strictly local. It is also an established rule that if a subject of one State resides in another State, he becomes subject to the laws of the country where he resides, just as much as if he was a natural born subject of that country; in other words, the law of his domicil governs his rights and liabilities. I will now submit for consideration whether there be really a necessity for international legislation, and if so, how that object could possibly be attained. As to the first part of the proposition, it seems to me that if any uniformity of law be required between nations, the simplest way would be for each State to follow the laws of that country which are adopted by the majority of other States, such laws to possess recognised and equitable rules of law. This would be necessary in order to supply that which would be needed to complete an uniform system, recourse being had to treaties in case these are not adequate. Now, with respect to the second part of the proposition, I respectfully submit the question by what mode international legislation could best be devised? It is superfluous to state that national legislatures are elected by the people of each country according to their respective laws; hence the difficulty of legislating on purely international matters. I repeat that international treaties are hence the only means of assimilating the laws of nations. Now, in order to illustrate the effect of codification, let us take the Code de Commerce as an example. It is manifest, and has been decided by the French superior courts, that the Code de Commerce, being an exceptional law, derogating from the common law, it is, like all exceptional laws, restrained in its application to such cases to which it specially relates-the common law that governs them; and it is therefore quite clear, supposing international codification practicable, that it would nevertheless be subservient in the cases mentioned to the common law of the country in which the cause is tried. It seems therefore to me, although I sympathise with the good meaning of the promoters of this grand project, that its realisation is beset with insurmountable difficulty. But I am quite aware that there is a great field for the improvement and reform of existing laws, but I think that reform should commence at home, in such a way as to bring the law of this country in harmony with the laws of that country whose laws are prevalent on the Continent. The Lex loci contractus prevails in determining the law. (See Transactions of the Congress, 1874, page 236). The ruling in this case is of the utmost importance, and ought to be of universal application, so as to avoid similar conflicts of laws. For instance, the case of Lloyd v. Guibert, L.R. 1, 2, B. 115, Exch. Ch. 126. In this case the defendant, being a French shipowner, set up as a defence that he was not a British subject, and that the law of his country governed the case. as the contract had been executed in a country neither English nor French, but was to be performed in England, the plaintiff submitted that the law of France could not govern the case, The Court of Queen's Bench nevertheless decided that the law of the flag to which the ship belonged ruled the case. Now, even granting the theory of the law of the flag, the decision of the Court of Cassation in 1864, to the effect that the law of the country where the contract was made between a French and foreign subject, governed, this case shows clearly that the said theory was wrong. In 1865 the case of Shand v. the P. & O. Navigation Company came before the Judicial Committee of the Privy Council, an appeal from the Supreme Court of the Mauritius. On reversing the judgment. of the Court below, the late Lord Justice Turner, in giving judgment, referred to the decision of the Court of Cassation in the above-named case, the defendants being the same in both actions. Now, it is incomprehensible that the Exchequer Chamber should have arrived only a few months later at a conclusion so diametrically opposed to that of the Court of Cassation and of the Privy Council. It may be considered that, as far as the UorM case in point is concerned, there was no distinction between the laws of England and France. Yet the result of the decision has shown not only a conflict of foreign laws, but also a divergence of decisions between the Common Law Courts and the Privy Council. It may seem strange that I have digressed from the original subject as indicated by the title of my paper, but I have done so purposely to impress on the mind of the congress the greater necessity for improving the national law in preference to attempting the codification of International Private Law. In conclusion, I may state that my views are in accordance with the events of the last fifteen years. It was attempted in 1860 in Glasgow, and in 1864 at York, by the General Average Congress held at those cities respectively, to create an uniform system of general average. Both gatherings had the advantage of an enlightened interchange of ideas from gentlemen of learning and practical experience, the Glasgow meeting having been presided over by the late Lord Brougham, and that at York by the present Lord Chief Baron of the Exchequer, Sir Fitzroy Kelly. But what has been the solution of this meritorious project since it was launched fifteen years ago? I regret to say that result speaks for itself, and we are no nearer to a determination on this head than in 1860. Innate prejudice and national amour propre will always interpose between progressive international reforms, nor will the present case form an exception. A perusal of the Journal des Débats' of June 23, 1870, with regard to a treaty for the execution of judgments between France and Spain, an elaborate debate in the then French Senate on the motion will prove the correctness of my views, namely, that the sensibilities of legislatures are most strongly impregnated with national jealousies. I should wish it to be understood that I appreciate an universal law of nations, but I look at the obstacles to contend with, and, as time in all matters is a material object, we should seek simple remedies easily realised in preference to gigantic schemes, however sublime, whose solutions would be deferred to an unknown future. His Excellency DON ARTURO DE MARCOARTU read a paper On Internationalism. The Right of Peace and War. International Arbitration." In studying the perturbations of 1 This paper has been printed in full by the author. peace it is necessary not only to discover and realise the causes which lead to war, with the object of diminishing them, but the powers which dictate wars in order to counteract and neutralize them. It is necessary, in short, to investigate the right of peace and war. There exists in all monarchies, both in those which are absolute as well as in those limited by popular representation, a right constituted in opposition to the right legitimate, rational and innate of the individual, viz., the right of war. It can be conceived how, in past times, when subjects were vassals, a sovereign might dispose of their lives and fortunes; but it is not to be explained how at the present day, the head of a state, who cannot dispose of the property of his subjects, except by the consent of their own representatives in the Legislative Council, should still retain the prerogative of disposing of the lives of his subjects and declaring war. It is useless to attempt to explain this contradiction by saying that, inasmuch as war cannot be carried on without resources, and as these must necessarily be voted by the legislative body; so, although the chief of the state declares war, yet it is always the legislative assembly which sanctions it or renders it impracticable. It would be difficult to find in the history of modern nations, any instance in which war having been declared by the monarch, a government possessing a legal if not a legitimate majority in the representative chambers, has not obtained from them the necessary resources for undertaking it. On the contrary, history has recorded many occasions on which the heads of the political party holding the reins of power, in order to quiet the struggles of parties and weaken the opposition, have availed themselves of the most favourable opportunity, have sought earnestly at times even a ridiculous pretext, nay, have even provoked an occasion, for the purpose of concentrating the passions of the people upon matters external, intoxicating them with the successes of a war engaged with some weaker state, where it was asserted the national honour imperiously demanded reparation; or that a providential mission had to be accomplished by extending the benefits of modern civilisation to distant regions by the agency of artillery. And in these solemn votings of the legislative assemblies, when the popularity or perhaps the fate of a dynasty or the existence of a party in the state were believed to be at stake, parliamentary majorities have been found to vote the supplies with blind enthusiasm, and to deliver up the future prospects of their country to the chances of war. We thus see that the autonomy of the individual and the national sovereignty do not exhibit themselves or exist in international questions. Monarchical |