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had only been enforced with regard to property locally situated in an annexed country, observed that the language used in them must be construed solely with reference to that contingency. It is no doubt true that the language which falls from many judges must be construed solely with reference to the cases before them, but the words selected by a man like Chief Justice Marshall for the purpose of expressing the principle on which he acted cannot be so treated, and his mention of conquest as not annulling either private property or private rights must be understood in all the breadth he gave to it 1. Still another example of a situation existing between two states at peace with one another, and regulated as between them by a rule of international law, being brought before a national court through a private person's being concerned in it, is furnished by the operation of prize courts as between belligerents and neutrals. Those courts sit under national authority and must obey the determinations of the constitutional national authority. Whether or not, for instance, Lord Stowell considered the Orders in Council during the Napoleonic wars to be justifiable as measures of retorsion against the Continental System, the Orders were acts of state and he had no choice but to apply them. Consequently, for the purpose of the inquiry how far international law is a part of the law of England, a British prize court stands on the same footing as the High Court or the judges to whom a petition of right is referred; and that

1 Although the judges in West Rand Central Gold Mining Company v. Rex held that their decision was made necessary by a British rule excluding any rule of international law, they attacked the rule of the latter kind which was alleged, and to discuss it would not be within the scope of this article. It can be appropriate hero only to mention the two grounds on which their lordships relied in denying it. One was connected with the limitation attempted to be placed on Chief Justice Marshall's enunciation of principle. It must not be forgotten,' they said (p. 411), 'that the obligations of conquering states with regard to private property of privato individuals, particularly land as to which the title had already been perfected before the conquest or annexation, are altogether different from the obligations which arise in respect of personal rights by contract.' What is the authority for this? The other was that the rule which makes a conqueror succeed to the obligations of his predecessor is not presented by international lawyers as being without exception, which their lordships seemed to think an objection in itself; and they also seemed to think that, even when the exceptions admit of being stated, a national court would be incapable of applying them to the facts of cases. The truth is that often the rules of international law resemble those of the common law in making their first appearance in a very general and crude form, which practice and discussion elaborate and fence; and where national courts deal seriously with international rules as necessary to their decision-take for instance the dealings of the Supreme Court of the United States with the principles of neutrality, and those of Lord Stowell with the laws of maritime war-they have shown themselves as capable of assisting in the process of definition and application as they have shown themselves to be in matters of the common law, If there were a greater difficulty in the former case than in the latter, it would speak ill for the prospects of a permanent court of international arbitration.-The other point in West Rand Central Gold Mining Company v. Rex, namely that if the obligation by international law existed it would not be a contractual one and therefore not available under a petition of right, is analogous to the point in Queen v. Keyn, that the court would have been without jurisdiction even if England possessed the right of jurisdiction under international law.


international law is its law, in the absence of express interference by constitutional authority, is an elementary fact. Here again, as in the preceding cases, it is the current international law which enters into the law of England, although the court performs an important and responsible function in helping to shape that law. To the admiralty judges who laid down the rule of the war of 1756' it would have been no answer to say that that rule was not to be found in the Consolat del Mar or in Grotius; and if it should come up for decision whether the Declaration of Paris is enforceable against a subject of a state which has not adhered to it, it will be for the judges before whom the question is brought to decide whether the process necessary for the growth of international law has been completed in that instance.

Lastly, war, even as between the belligerent states and between each of them and the subjects of the other, is not unregulated violence, but an institution of international law, not created but restrained and moulded by it, as much as the conquest to which war may lead. Private persons may be concerned in that institution before the king's courts, as the Dane, whom in the case of Wolff v. Oxholm, 6 M. & S. 92, 18 R. R. 313, Lord Ellenborough made to pay over again a debt due to British subjects, which he had paid to his own government under an ordinance confiscating the property and credits of such subjects, issued during war between the two countries. That judgment is at variance with others, especially United States ones, but whether confiscation is or is not lawful between belligerents, either way it was the international rule which had to be applied. If payment under the ordinance had been treated as a good discharge against the original creditors, that would have been international law interpreted in favour of the defendant; since it was not so treated, that was international law interpreted against him. And having regard to the growing mildness of practice and opinion, the question in any future case of the kind must be whether the confiscation is now allowable.

Another example, happily not likely to occur in England, of the liability of the international laws of war to come before a national court, may be furnished by the right generally allowed to an invader to collect the taxes due to the enemy government in the region which he occupies. Suppose that that government sues for them after the occupation has ceased. Will the payment of them to the invader be reckoned as a discharge? But it is needless further to multiply examples, since it may be hoped that those which have been given will be sufficient to indicate and illustrate the answer which I shall now attempt to make in general terms to the question whether international law is part of the law of England.

The English courts must enforce rights given by international law as well as those given by the law of the land in its narrower sense, so far as they fall within their jurisdiction in respect of parties or places, subject to the rules that the king cannot divest or modify private rights by treaty (with the possible exception of treaties of peace or treaties equivalent to those of peace), and that the courts cannot question acts of state (or, in the present state of the authorities, draw consequences from them against the Crown).

The international law meant is that which at the time exists between states, without prejudice to the right and duty of the courts to assist in developing its acknowledged principles in the same manner in which they assist in developing the principles of the common law.



HE Report of the Special Committee appointed by the Council of the Law Society (appointed pursuant to a resolution of the Society passed at their annual meeting in 1904) is full of interest. Whatever opinion the reader may form as to the merit of the suggestions contained in it, he will be unable to deny that they require very careful consideration.

During the first three quarters of the last century public opinion was strongly opposed to allowing matters to be dealt with by government officials in any case where it was possible to do without their assistance. It used to be the common opinion that every man could manage his own business better than any other person, even a government official, could manage it for him; but at the present day it is a habit, whenever any inconvenience is felt, to apply to government for help, rather than to endeavour to find a remedy without seeking official aid. The arguments in favour of the former opinion, sometimes called the 'Laissez faire' doctrine, are stated with considerable force and clearness in the Report.

Probably the most strenuous supporter of the 'Laissez faire' doctrine will admit that there are some cases where, on the whole, the balance of advantage is that the business should be transacted by officials; and the question to be considered in such cases is how to reduce the interference of officials to a minimum.

The Report says (at p. 42):

'There is too great a disposition to lean upon the government and to expect that all work done by government officials will be well done. But surely experience teaches a different lesson. Surely, of the departmental management of the affairs of the army in particular it may be said that ever since there has been a War Office in this country, and certainly down to the present day, gross inefficiency has appeared in its operations, and corruption has at times been rife. It is a trite observation that public business is worse managed than any other business. The work of a government or official department will rarely bear comparison with that undertaken by private enterprise, nor, considering the absence of competition in the public service, is it likely ever to do so. The advantage which individual effort has over a public department may be seen whenever the results of each are brought into competition. It is only by means of competition and restriction that an official department can hope to compete successfully with private

persons. This is seen in the Postal and Telegraph Service, the most remote competition with which, even such as that of Boy Messengers, is immediately strangled, no matter what additional convenience it might afford the public.'

Supporters of the doctrine of Laissez faire' will admit that experience shows that in some few cases official control over a man's acts, however unpleasant it may be to him, is, on the whole, beneficial to the community; but the onus of proof that the control would be beneficial lies on those who propose it; they must show that the evil intended to be obviated is one which cannot be avoided without the control, and, further, that the control will not introduce new evils. It is also obvious that the control ought not to be greater than the case absolutely requires. For example: it is for the public benefit that some control should be exercised over buildings in towns so as to minimize the risk of fire spreading from one house to another, but the same control applied to detached buildings in the country has been found by experience to cause serious difficulties in building cottages for agricultural labourers.

The Report contains special remarks as to the effect of officialism in connexion with bankruptcy, the winding up of companies, and registration of title. Probably the committee considered that it hardly fell within the scope of their inquiry to deal with the question why, in each of these cases, officialism was adopted. The Report would have been much more valuable if it had contained answers to this question, particularly if it had discussed how far the objects aimed at by the existing law could have been attained either without or at least with the minimum of officialism.

It is, perhaps, not inaccurate to say that in dealing with such subjects as bankruptcy and other matters specially discussed in the Report, Parliament is more likely to attend to the wishes of the man in the street than to be guided by the advice of lawyers, and that, therefore, in discussing the questions whether any and what official control is proper in cases of this nature, we have to consider not what are the real evils intended to be remedied, but what are the evils which are commonly believed to exist.

The Report makes out a prima facie case for a change in the law of bankruptcy and winding-up of companies. It points out that every bankrupt estate has to pass through the hands of an official receiver, who is not directly responsible to the court, but is an officer of the Board of Trade, and who exercises great powers. It proceeds: It is clear that this state of things is not popular among creditors. There is a growing tendency to withdraw the realization of insolvent estates from the courts administering the Bankruptcy Act, and to entrust it to assignees nominated or approved by the

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