tember, in the year of our Lord one thousand eight hundred and seventy-two. (Signed) C. F. ADAMS. (Signed) (Signed) FREDERIC SCLOPIS. The Editor had intended to set out in extenso the separate opinion of the Lord Chief Justice of England, but the length of that opinion and the small space at command force him reluctantly to abandon that intention. The reader will find Sir Alexander's reasons published in full in the London Gazette, and a very excellent resumé of his argument in the Annual Register for the year 18721. To all who are desirous of examining in the detail they, deserve the grounds of the opinion expressed by his Lordship, a careful examination thereof ought to be made; and certainly, as the writer in the Annual Register says, whatever may be the inclination or bias of those who look at the "Decision and 'Award," one thing will be clear, that the Chief Justice's "Reasons" furnish a most striking example of legal acuteness and force of reasoning applied to a series of complicated and momentous questions. To all who wish to see how learning, logic, and eloquence are brought to bear upon the discussion of a most important branch of International Law, a perusal of the "Reasons" of Sir Alexander Cockburn is strongly recommended. One or two extracts from his Lordship's judgment must however here be given, because they are as sound in common sense as they are true in law. In discussing the elements of neutrality he remarks "that the Government of a country can only be held responsible for breaches of neutrality committed by its subjects when it can reasonably be expected to prevent them. There are things which a Government can prevent and others which it cannot. It can prevent things which are done openly and in defiance of the law. But a Government cannot be held liable in respect of things it cannot prevent, such as the conduct of individual subjects in enlisting or serving in the land or sea forces of a belligerent, or things done clandestinely or surreptitiously so as to elude observation or detection notwithstanding the exercise of proper diligence to prevent the law from being broken. But then the exercise of such diligence is part of 1 See London Gazette for September, 1872, and Annual Register, Vol. cxiv. pp. 110-116. the duty of a Government, and the condition of its immunity. If this diligence has been wanting, a belligerent has just cause to hold the neutral state responsible for wrongful acts done by its subjects in violation of neutrality, and from which he the belligerent has suffered." In reviewing the opinions of writers on International Law as to the restrictions to which a neutral trade is subject, it will be found, says Sir Alexander, "that they are ranged under two heads, one set of them assuming that to supply a belligerent with articles of warlike use, though in the way of trade, is to take part in the war, and upon this assumption their assertion must be granted that it is the same thing whether the objectionable articles are sold to the belligerent in the country of the belligerent or in his own. But there is another party (and among them stands preeminent the great authority of Chancellor Kent), who, starting from the principle that according to natural justice the rights of the neutral should be left free, and untouched by the wars of others, look on the existing restraints on the freedom of his commerce as encroachments on his rights, and considering these restraints as arising entirely from convention, deny the illegality of any trade which the actual practice of nations does not prevent." Let Europe, which witnesses year by year the enormous development of commerce, the large and increasing benefits it is conferring upon civilization and the happiness of mankind, the terrible effects for evil which war produces on that civilization and happiness, and the growing disposition of every country that tastes the blessing of prosperous trade and continuous peace to favour the liberty of neutrals, hold the scales between these sets of writers, and say to which side the balance shall incline. Again, in discussing the question, what constitutes diligence? Sir Alexander uses these forcible words: "It is to be remembered that a Government cannot be taken to guarantee the event, in other words to be answerable at all hazards, and under all circumstances, for a breach of neutrality by a subject if it occurs. In spite of the law and of the vigorous administration of the law offences will take place, and neither at home nor abroad can rulers be held under all circumstances answerable to those who suffer from them. All that can be expected of the Government of a country, is that it shall possess reasonable means to prevent offences, and use such means honestly and diligently for the benefit of those who are entitled to its protection. The terms of the treaty, which require no more than 'due diligence', exclude all notion of an absolute unconditional responsibility. A Government, though bound to prevent any known violation of the law, is under no obligation to a belligerent to enforce the law for his benefit, and incurs no liability to such belligerent for not so doing, so long as the law is not enforced against the latter any more than against his enemy. No doubt as a matter of comity and from a sense of justice, a Government would pay ready attention to the representatives of a belligerent power complaining of an infraction of the municipal law in a matter in which the interests of the belligerent were affected, more especially in a matter lying as it were on the confines of municipal and International Law, and would call into action the preventive powers it possessed, to keep the law from being broken. But under such circumstances it might fairly leave to the representative of the belligerent to make out a case for the application of the law, just as it is left so to do to an ordinary individual who desires to put the law in motion, in order to obtain redress on his own behalf.......It is obvious that the degree of active diligence which could reasonably be expected from a Government under such circumstances is very different from what it would be bound to exercise in order to prevent a violation of neutrality according to the law of nations, for which as a Government it would be properly responsible to a belligerent state." APPENDIX III. THE introduction of the Convention of Geneva into the International Jurisprudence of Europe, and its firm establishment therein, is a remarkable fact illustrating the growing tendency of the European powers to those more humane and civilized efforts to soften as far as possible the horrors and misery of warfare to which we have borne testimony in the text of this work, and reflecting the highest credit upon the efforts of the noble-minded men to whom it owes its origin. The history of its institution is well told by M. Leonie de Cazenove1. M. Henry Dunant, a citizen of Geneva, chanced to visit Italy during the war of 1859. At Solferino he witnessed the horrors of a battle-field in all their stern reality. So deep an impression was produced in his mind by the terrible sufferings of the wounded and the overpowering difficulty, not to say the impossibility, of ministering to their wants, that he published to Europe at large the true story of a battle-field after the fight is over, and in a work that deserves perusal, Un Souvenir de Solferino, he describes the town of Castiglioné on those three days of misery, the 25th, 26th, and 27th June, when trains of the wounded and dying were brought into its houses for help and assistance, utterly beyond the resources at command, and when the town itself became an improvised hospital, but lacking almost everything that can render hospital aid of service. Stirred by such scenes, he resolved to appeal to the humanity of Europe for help in the object he had in view. He sought for and obtained the direct sanction of nearly all its Sovereigns, to the summoning of an Inter1 La Guerre de l'Humanité au XIXeme Siecle. Paris. Arnauld de Vresse. national Conference. That Conference met at Geneva on the 26th October, 1863, under the presidency of General Dufour, and there, in the presence of the official representatives of Austria, Baden, Bavaria, France, Great Britain, Hanover, Hesse-Darmstadt, Holland, Prussia, Saxony, Spain, Sweden and Norway, Switzerland, and Wurtemberg, and of the officers of various benevolent societies of every country, it was resolved first that National Committees should be established throughout Europe for the purpose of providing succour and help to sick and wounded in war, and that the principles laid down by the Assembly as the basis of the plan of work should be formulated into a series of Articles, which are appended below. To these articles all the Powers of Europe have given their adhesion. Among them appear the signatures of Turkey on the 5th July, 1865, and Russia on the 22nd May, 1867. Since the establishment of the Convention of Geneva there have been two great wars, one concluded, and one still going on. In the former of these wars, in which the combatants were France and Germany, the benefits of Monsieur Dunant's great work were universally acknowledged, and the generous efforts of the Red Cross Societies deeply appreciated. Each of the combatants too, in spite of the intensity of the strife, fought with strict regard to all the Articles of the Convention, especially to the 5th and 6th. Unfortunately in the war now being waged, one of the belligerent powers has forgotten the principles of humanity it had sworn to uphold. The conduct of the Ottoman troops has been such as to provoke a stern rebuke from the German Government for the atrocities committed by the Circassian and other savage levies attached to the Turkish force, and a remonstrance has been addressed to their Pashas for their deliberate breach of the Geneva Convention (which, be it noticed, is a treaty). In this remonstrance Austria, Italy and Spain have joined, and in answer to it the Porte has promised new reforms, regulations and institutions, which will make further atrocities impossible, and further complaints unnecessary1. One would have thought that the rules and articles of the treaty were so plain and easy that no new reforms and regulations could be needed. 1 See Times and Daily News of August 29, 1877, and Spectator, August 25, 1877. |