PREFACE.

ON SOME UNSETTLED QUESTIONS OF PUBLIC LAW.

Ir is only within the last few years that Public Law has found even a subordinate place in the studies of the English lawyer. Questions and principles which, from the time of Grotius, have been familiar to Continental jurists, and which in our own country have been illustrated and applied in the judgments of Sir William Scott and the distinguished civilians who preceded him, have been, until lately, except for purposes of a special practice, and occasionally to serve a political purpose, left unnoticed by, and almost unknown to, the student of our laws. Recently, however, some approach has been made to a systematic teaching, as of an integral part of legal education, of that body of law which governs the relations of independent communities, both in peace and war; and efforts have been made, by the reduction of the maxims of this branch of jurisprudence to a system, to extend the knowledge and increase the influence of those principles of the Law of Nations-the jus inter gentes-by whose rules the international transactions of civilised States must at all times be governed.

One of the chief departments of International Law is that which treats of the maritime intercourse of nations in war and peace, and which decides upon the legal incidents to the position-one which is every day. acquiring increased importance-occupied by neutral countries in their relation to belligerent States. It is the object of the present work to examine into the principles which lie at the root of this important branch of jurisprudence, and to present them in a condensed form to the student and practitioner. The book contains, the author believes, the results of the leading decisions of the Courts, and opinions of writers on the Law Maritime both in this country and in the United States; but authority for the different positions advanced have been sought for rather from decided cases than from any dicta of civilians, however eminent may be their position as writers on Public Law. For in proportion as Maritime Jurisprudence, and the Law of Nations generally, advances from the condition of comparative uncertainty, if not of positive error and false views of international obligations, in which Grotius found it, to a system of positive law more accurate, more comprehensive, and more capable of being reduced into practice, so will the decisions of those tribunals to which is entrusted the administration of this department of law possess a higher value than that accorded to the ordinances of States, or the opinions of jurists. The usage of nations and the authority of writers are indeed looked to as sources of

information to which respect must be always paid;1 but of far higher authority are those rules which have resulted from the actual decisions of Courts on such questions of Public Law as have been brought into actual controversy, and have been determined in accordance with the understanding of nations, and the principles of an enlightened jurisprudence.2

It is to the recent Civil War between the United and Confederate States of America that much of the awakened interest in the study of International Law is to be ascribed. That struggle between two communities, both so nearly allied to our own country in language and manners, and which adopted in the main a legal system identical with our own, not only supplied illustrations of many of the questions with which the student of Public Law was already familiar, such as the Law of Contraband and of Blockade, but also gave prominence to, and so as to place in a fair way for ultimate settlement, other points on which, both as between this country and the United States, and as between both these powerful communities and the nations of Continental Europe, a conflict of law has with some tenacity been maintained. Examples of these questions are, for instance: the exact effect of a declaration of war on the property of an enemy found in the country at the time; the obligations entailed by

1 See per Lord Mansfield in Triquet v. Bath, 3 Burr. p. 1478.

2 The Floy Oyen, 1 Rob. p. 141. Kent's Com. i. p. 79. "On the law of nations," said Lord Kings

down, "foreign decisions are entitled to the same weight as those of the country in which the tribunal sits." The Aline and Fanny, 10 Moore, P. C. C., p. 491.

a complete neutrality; re-capture at sea; what articles are contraband of war, and the celebrated question which formed the subject of discussion at the Congress of Paris in 1856-the right of neutrals to send goods by the ship of a belligerent, or to carry the goods of a belligerent in their own neutral ships, questions expressed by the celebrated formulas, "free ships free goods," and "enemy ships enemy goods." The law on these subjects stands in need of numerous amendments; it is now in almost the same unsettled state as it was before the recent Civil War in America, and has received but slight modification or expansion by any of the more recent decisions in the Courts of either country on international questions. But the importance of an understanding on these points being arrived at by the two greatest maritime countries of the world, either by means of mutual concessions or by more enlarged views of the obligations attendant on a position of neutrality, is very great, and no apology will here be offered for drawing attention to one or two of the subjects upon which a conflict of law, or at least a considerable misapprehension of the principle of International Law, exists, and the settlement of which would not only tend to lessen occasions of differences, but aid in the extension and security of neutral rights. This conflict may, indeed, with greater fitness be termed one of political systems and usages of commerce than of laws; for as between civil societies or States there does not exist that paramount judicial authority which is

it

necessary to determine the law and enforce its sanctions. All nations being, in theory at least, independent, and acknowledging no superior, any agreement into which they may enter with each other on questions of war or peace are Conventions rather than Laws. And hence, may be here observed, arises the importance of establishing an accord on these large subjects as between governments. By this means existing systems of law would, in all probability, be moulded so as to incorporate and give legal effect to whatever resolution might be arrived at with a view to the establishment of a code of International Law on a settled basis.

I. One principal question on which the practice of Great Britain and the United States is at variance, and which requires to be reduced to rule founded on definite principles, is the obligations incident to a true neutrality. The examination of this question has recently been pressed upon this country by the United States in the matter of the ship Alabama," a cruiser belonging to the Confederate States; and it involves certainly grave considerations and is of special importance as affecting the private commerce both of neutral and belligerent States.

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"Natural or perfect neutrality," says Wheaton, "is that which every sovereign State has a right, independent of positive compact, to observe in respect to the wars in which other States may be engaged." This position, although one which under the modern Law of

1 Inter. Law, p. 697, ed. by Lawrence.