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must be impartial, and as little connive at error as they would aid in propagating it. Their rule must be that of Dante:
“ Ma per trattar del ben ch'ivi trovai,
Dirò dell' altre cose ch'io v'ho scorte."
We therefore point out for animadversion the attempt of Earl Russell to treat the case of the Alabama as analogous to “ the accidental evasion of a municipal law of the United States by a particular ship;"* and the double error of the Solicitor-General, in saying that “ the Foreign Enlistment Act was passed for the defence of our neutrality against any invasion of it by other powers, and not in consequence of any obligation imposed on us ;” and in representing the case of the Alabama as one simply of the sale of an instrument of
The latter assumption runs through his whole speech, and comes to the surface in passages too numerous to cite, but of which the following may be taken as a sample :-“ In the present instance, the sale of a vessel of war is an offence purely because our own law has declared it to be so." In fact, he altogether ignores the question of the hostile use of neutral territory, as the starting point of expeditions, and the base of their operations. So complete a preterition of a point often and clearly put by Mr. Adams, by an advocate whose intelligence never misses the force of an argument, and whose subtlety we never before knew at fault for an answer, is the highest testimony which we could have imagined to the strength of his adversary's case.
“It is clear," said Mr. Adams, in his letter to Earl Russell of November 20, 1862, “that the reciprocation of such practices could only lead in the end to the utter subversion of all security to private property upon the ocean. In the case of countries geographically approximated to one another, the preservation of peace between them for any length of time would be rendered by it almost impossible. It would be, in short, permitting any or all
* Letter to Mr. Adams, of December 19, 1862, in Correspondence respecting the Alabama, p. 26.
irresponsible parties to prepare and fit out, in any country, just what armed enterprises against the property of their neighbours they might think fit to devise, without the possibility of recovering a control over their acts the moment after they might succeed in escaping from the particular local jurisdiction into the high seas.”
And again, in his letter to the same minister of December 30, 1862 :
" The only allegation which I find in your lordship's note in connexion with the United States is this, that vast supplies of arms and warlike stores have been purchased in this country, and have been shipped from British ports to New York for the use of the United States' government. Admitting this statement to be true to its full extent, conceding even the propriety of the application of the term 'vast’ to any purchases that have been made for the United States, the whole of it amounts to this, and no more, that arms and warlike stores have been purchased of British subjects by the agents of the government of the United States. It nowhere appears that the action of the British went further than simply to sell their goods for cash. There has been no attempt whatever to embark in a single undertaking for the assistance of the United States in the war they are carrying on; no ships of any kind have been constructed or equipped by her Majesty's subjects for the purpose of sustaining their cause, either by lawful or unlawful means, nor a shilling of money, so far as I know, er. pended with the intent to turn the scale in their favour. Whatever transactions may have taken 'place have been carried on in the ordinary mode of bargain and sale, without regard to any other consideration than the mere profits of trade. present object in referring so much at large to these offences is to show the great injustice of your lordship in proceeding to comment upon the action of the respective belligerents as if there was a semblance of similarity between them. So far as the United States are shown to be involved in censure, it is simply by the purchase and export of arms and munitions of war from a neutral—an act which your lordship expressly points out eminent authority to my attention to prove implies no censurable act on either party ; whilst, on the other hand, it is American insurgents who find
British allies to build, in this kingdom, and to equip and send forth war-ships to depredate on the commerce of a friendly nation.
Surely this is a difference not unworthy of your lord. ship's deliberate observation.”
This was no novel line of argument, and Earl Russell admitted its force. In his letter to Mr. Adams of January 24, 1863, after repeating the attempt to prove that the government had acted with sufficient promptitude, his lordship proceeds thus:
“As to other points we are nearly agreed, so far as the law of nations is concerned. But with respect to the statement in your letter that large supplies of various kinds have been sent from this country by private speculators for the use of the Confederates, I have to observe that that statement is only a repetition, in detail, of a part of the assertion made in my previous letter of the 19th ultimo, that both parties in the civil war have, to the extent of their wants and means, induced British subjects to violate the Queen's proclamation of the 13th of May, 1861, which forbids her subjects from affording such supplies to either party.
It is no doubt true that a neutral may furnish, as a matter of trade, supplies of arms and warlike stores impartially to both belligerents in a war, and it was not on the ground that such acts were at variance with the law of nations that the remark was made in the former note. But the Queen having issued a proclamation forbidding her subjects to afford such supplies to either party in the civil war, her Majesty's government are entitled to complain of both parties for having induced her Majesty's subjects to violate that proclamation; and their complaint applies most to the government of the United States, because it is by that government that by far the greatest amount of such supplies have been ordered and procured."
It is rather strong, because a belligerent does not close his ports against contraband, to refuse to him the common duties of neutrality. And we find it hard to follow Lord Russell's reasoning about the Queen's proclamation. We have always understood that the sovereign of this realm can make nothing illegal by proclamation. So far, then, as the supply of arms and warlike stores to belligerents is not at variance either
VOL. XV.-NO. XXIX.
with the law of nations or with the statute law of England, a proclamation forbidding it must be a nullity; and it is not respectful to the sovereign to interpret in such a sense any proclamation which may have been issued. If, therefore, his lordship is not devoted to the theory of passive contrabandand the correspondence in this case sufficiently proves that he is not guilty of that heresy—we submit that he ought not to have expounded the Queen's proclamation as forbidding the sale of arms and warlike stores within the limits of her Majesty's dominions.* It was a a desperate effort to cover, by recrimination, an unlucky practical slip, and we are happy to think that it does not interfere with the value of his lordship’s recognition of the difference between common purchases in the markets of the world and the hostile use of neutral territory. We therefore leave this case with the confident belief that, memorable as it will remain among the precedents of international law, the sophistry which has been expended on it will not weaken any principle of that important science.
* The truth about the proclamation is simply this: it commands the Queen's subjects in general terms to observe a strict neutrality, and to abstain from violating either the law of the realm or that of nations; and it warns them of the consequences of certain specified acts, of which the carriage of contraband, but not its sale, is one. This is not what any one would understand from such an account of the proclamation as is given in Lord Russell's statement, that it “forbids the affording supplies.” But let the expression pass. In substance, if his lordship refers to the carriage of contraband, the result is that, since no belligerent can really be expected to close his ports against that kind of commerce at the moment when he most needs it, any power may free itself from the obligations of neutrality by warning its subjects against the penal consequences of carrying contraband. And, if his lordship refers to the sale, then bis statement that the proclamation forbids it must rest on the assumption that it is either a violation of neutrality, or of the law of England, or of the law of nations, every one of which things his lordship says repeatedly in this correspondence that it is not. We do pot, therefore, positively insist on the suggestion in the text of a disrespectful interpretation of the Queen's proclamation. A theory at least equally plausible is that no intelligible interpretation at all is put on it in that memorable part of the correspondence which begins with the sentence“ With regard to the claim for compensation now put forward by the United States' government, it is, I regret to say, notorious that the Queen's proclamation of the 13th of May, 1861, enjoining neutrality in the unfortunate civil contest in North America, has in several instances been practically set at nought by parties in this country."--Earl Russell's letter to Mr. Adams of December 19, 1862.
ART. VIII.-LORD MACKENZIE ON ROMAN LAW.
Studies in Roman Law, with comparative Views of the Laws
of France, England, and Scotland. By Lord MACKENZIE, one of the Judges of the Court of Session in Scotland. William Blackwood and Sons, Edinburgh and London. 1862.
our last Number we gave a brief notice of this work, and
we have since carefully read it. The perusal has fully borne out the impressions we have already indicated; and, without being unnecessarily encomiastic, we hail it as an excellent, and, in many respects, highly serviceable, production for the cause of jurisprudence. And it has come from a somewhat unexpected quarter. These are not the days when people look for anything from our judges beyond the faithful discharge of their important and practical duties; and any public evidence of the exercise by them of other intellectual energies would, in England, we fear, instead of attracting the interest of the people, in all probability beget a suspicion that the judicial office, which allows a studious leisure so unmistakably proved, may not be so laborious or responsible as it is claimed for its high rank and large salary truly to be. And not only so, it might be contended with much plausibility that there was an inappropriateness in a judge,-before whom, in an artificial and complicated society like ours, disputes might come, calling for the novel and unanticipated application of the rules of law,-committing himself in the hopeless manner a book always does) to positive statements of legal opinion which the litigation of his Court may require him to reconsider, to the peril not merely of his scholarly reputation, but even of his judicial impartiality. It certainly would be very disagreeable for a judge to have his own book quoted against him, and it might