too good and thorough a lawyer to allow him to substitute his own notions of justice in place of a clear rule of law; but he had no respect for mere technicalities, and had no difficulty in setting them aside when they stood in the way of an obvious principle.

On taking his seat in the Common Pleas, in Michaelmas Term, 1855, Mr. Justice Willes at once assumed the position he was destined to retain through all the changes the Bench of that Court underwent during seventeen years. He contributed from the first an important element to the strength which the Court possessed during all that period. At Nisi Prius he was patient and painstaking, and most careful in summing up. As a criminal judge the same qualities distinguished him, and he always seemed to feel deeply the responsibility which attached to him in any important trial when presiding in the Crown Court. Whether sitting in Banco, at Nisi Prius, in the Crown Court, or on Election Petitions, he never spared himself, and no one ever accused him of being influenced on any occasion by the slightest feeling of partiality or prejudice, or of turning from the straight path by a hair's-breadth either to the right hand or to the left. In no judge on the Bench had the mercantile community greater confidence. They knew that he was thoroughly acquainted with commercial law, and would apply it in a wise and liberal spirit, while the closest attention would be given to every part of the most complicated case. When sitting as an Election judge he commanded universal approval no less by the admirable judgments he delivered in the difficult cases which it fell to his lot to try, than by the rules he laid down, to which we have already referred.

However great the loss may be which the country has sustained in being deprived, by the death of Mr. Justice Willes, of the judicial services of one so well qualified to throw light on all the highest and most difficult legal questions, it is as a law reformer that, under present circumstances, the extinction of his valuable life is most to be deplored. He had seen during twenty years the working of those important amendments in common law procedure of which he had been one of the chief promoters, and he was prepared for a large extension of analogous amendments throughout our whole legal system. No man was more anxious to improve in every possible way the administration of justice, and to adapt the law to the real wants of the community; but he sought to do this solely by attacking practical evils. This was the great principle which pervaded the Common Law Procedure Acts, and is the only sound principle of law reform. On the important question of the reform of the judicature, which is now impending, the views of Mr. Justice Willes,

when a measure came to be prepared, would have carried much weight with the profession. They would have had every confidence in his practical experience in dealing with the most difficult questions of law amendment, and in the wise discernment which he had always displayed in proposing only such changes as the profession were ready to sanction. They would have felt that if in any instance he agreed to an alteration which was sweeping, it was only because he was perfectly convinced that the necessity of the case required it, and that a real grievance could not otherwise be remedied. Not only on the subject of the reform of the system of judicature, but on all the other questions which have been brought forward respecting either the substance or the form of our law, both the profession and the country would have trusted much in the sound judgment, the ripe learning, the practical sagacity and the great experience of him whose loss we now deplore.

VI.-SIR ALEXANDER COCKBURN AT GENEVA.

THE

HE Geneva Arbitration may be looked at in two points of view, either as an assembly summoned ad hoc for the solution of a political difficulty, or as a tribunal for determining after a method hitherto untried a grave question of public law. Regarded in the former of these aspects it is an experiment of but second-rate interest, involving no principle, and but little likely to fulfil the dreams of those who try to find in arbitration a method of settling the disputes of nations which will supersede recourse to arms. Viewed on the other hand as a judicial proceeding, the respect and confidence which might possibly have followed its verdict had the court been unanimous, and had due weight been given to principles of the law of nations hitherto of all but universal acceptance, can with difficulty be accorded to a tribunal, one of whose membersand he the most distinguished-openly dissented from his colleagues in the greater part of the conclusion to which they came, and the whole of the reasons which they gave; while another, M. de Staempfli, did not hesitate to put on one side all idea of international law as a working system, or as having any real influence in modifying, much less resisting, the rights of a belligerent State; rights which he did not conceal, were the only ones he cared much to preserve.

Passing, however, from the inexact and unscientific method of treatment, and the vague utterances which the majority of

the court were satisfied to adopt, we reach in the Lord Chief Justice's elaborate opinion, that higher ground of judicial investigation, in the light of positive law, which, notwithstanding that the zeal of the advocate, or as he styled himself "in some sense the Representative of Great Britain," may here and there distinctly be traced, Sir A. Cockburn has on the whole succeeded in maintaining throughout. His argument we would now propose to examine, though necessarily in outline, not so much in its controversial aspect as opposing the conclusions or the reasoning of the other members of the court, as in its probable influence upon the public law of nations, regarding that law as a system capable of being interpreted with something like judicial exactness, and containing definite principles which may be usefully employed for the adjustment of international disputes.

The treaty of Washington will be remembered mainly if not exclusively from these rules, which it was conceded by our Government should be accepted as containing, for the purposes of the arbitration, principles by which the neutral obligations of Great Britain were to be tested. These rules are well known. They enjoin on a neutral Government in the first place to use due diligence to prevent the fitting out, arming, and equipping, within its jurisdiction, of any vessel which it has reasonable ground to believe is intended to cruise, or to carry on war, against a power with which it is at peace; and also to use like diligence to prevent the departure from its jurisdiction of any vessel intended to cruise, or carry on war as above, such vessel having been specially adapted, in whole or in part, within such jurisdiction, to warlike use. Secondly, not to permit or suffer either belligerent to make use of its ports or waters as the base of naval operations against the other, or for the purpose of renewal or augmentation of military supplies or arms, or the recruitment of men. Thirdly, to exercise due diligence in its own ports and waters, and as to all persons within its jurisdiction, to prevent any violation of the foregoing obligations and duties."

Of these rules, it is in the first place to be observed, that they form no part of the public law of nations. They were assented to as articles of peace; in order, to use the language of the treaty, to "evince the desire of Her Majesty's Government to strengthen the friendly relations between the two countries," and for no other purpose whatever. The legal responsibility they impose on us is accepted now for the first time. Secondly, that they are only binding on the two countries who are the contracting parties. For, thirdly, it is assumed, that other nations do not assent to, and would decline to be bound by, them; for England and America enter into an agreement to bring the rules to the knowledge, and press

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them upon the acceptance, of other States. And, fourthly, what new force and validity they have, is from the retro-active operation given to them by this treaty, according to which it is provided that the arbitrators should assume that Her Majesty's Government had undertaken to act upon the principles set forth in these rules." Taking, therefore, the proceedings of the tribunal and the provisions of the treaty together, the conclusion we should be driven to, if the judgment of Sir A. Cockburn was out of the way, is just this, that for any particular purpose or benefit, international law has no real existence. It is, as one of the most active of the arbitrators hardly cared to conceal, a mere phantom. There are no fixed principles of public law, no common legal standard, by which in future we can guide our conduct; and all the effect which the tribunal would have - ultra its immediate political purpose-would be to show that the science which purposes to define, and if possible, as civilization advances, hopes to be in a position to enforce, the duties which one nation owes to another, is a mere paper system; all very well for the jurist and the professor, but for the statesman nothing. In short, in any position of real difficulty, of a conflict on any material point, in the view of the matter taken by the majority of Sir Alexander Cockburn's colleagues, all questions of law or principle are to be brushed aside, or made to occupy a position wholly subordinate to fact. And it is on this point that the opinion of the Chief Justice comes in to rescue, as it were, the science of international law from degradation, and restore it to the position from which more than one of the other members of the court would fain expel it. M. Staempfli, for instance, had openly maintained that on any point on which the principles of international law, or the enactments of the municipal law of any State, are in conflict with the three rules, it was the duty of the court, without "losing itself in long discussions and theoretical interpretations," to apply the rules to the best of its ability in all good conscience, dealing with each case, as he expresses it, orally, summarily, and on its merits.* As Sir Alexander Cockburn interpreted this view, the argument is, that "because the practice of nations has at times undergone great

* The original is as follows:-" M. Staempfli déclare qu'il ne trouve pas tres-opportun de se perdre pour les trois questions des dues diligences, de l'effet de commissions, et des approvisionnements de charbon, dans de longues discussions et interprétations théoriques. Il developpe oralement et sommairement ses vues y relatives, en se réservant de motiver de plus pres leur application dans chaque cas spécial, et se borne pour le moment à poser les seuls principes suivants, qui lui servivont le direction générale." In short, this jurist, like a modern Gallio, in effect says, "If it be a matter of words and names and of your law, look ye to it, for I will be no judge of such matters."

changes, and the views of international jurists have often been and still are conflicting, therefore there is no such thing as international law, and that consequently we are to proceed independently of any such law according to some intuitive perception of right and wrong, or speculative notions of what the rules as to the duties of neutrals ought to be." It is here we find the first remarkable divergence of the views of Sir A. Cockburn from those of his colleagues. To him international law is something more than the shadow of a name. In his elaborate examination of the famous expression "due diligence," in the treaty, he expresses his "regret that the whole subject matter of this great contest, in respect of law as well as of fact, was not left open to us to be decided according to the true principles and rules of international law in force and binding mong nations, and the duties and obligations arising out of them at the time when these alleged causes of complaint are said to have arisen." In other words, his wish was first, that the tribunal should be a real instead of a sham court; one having charge of the whole case, guiding its procedure, and framing its decisions, according to rules of law well known to jurists, and acknowledged, at least to a great extent, by civilized states; and, secondly, that the obligations which it should enforce should be treated as growing out of, to use his own language, "that prior existing law by which a right has been created on the one side, and a corresponding obligation on the other." This law, largely interpreted, and not merely measured by the then municipal enactments of the defaulting state, would, in the Chief Justice's opinion, have been sufficient to meet the equity of the case; and thus the anomaly would have been avoided of a tribunal called into existence ad hoc, to deal with obligations assumed to have existed prior to the treaty, yet arising out of a supposed law created for the first time by the treaty and which, he might have added, when the purposes of the treaty have been answered, will in all probability be suffered to drop into oblivion.

So far as to the effect of the constitution of the Geneva tribunal upon international law, and the anomalous position which it occupied from its having been called into existence for the purpose merely of ratifying, and investing with a quasi-judicial sanction, the foregone conclusion of a political convention, Sir Alexander Cockburn proceeds to deal with the effect of the decision upon the celebrated doctrine of the trade of a neutral merchant with a belligerent state.

This vexed question, and whether we used "due diligence with respect to it, was of course the point on which the award turned, and to which all the arguments were addressed. What the doctrine is, at least in theory, we perfectly well know.