The sale to a belligerent of munitions, and even vessels of war, is a purely mercantile transaction, not in any wise prohibited to the citizens of a neutral state, and constituting no offence for which that State can be held responsible. This is the theory; and it may be added, the law as it is has been administered in our courts at a very recent period. Similarly it is well known that a contract between two subjects of a neutral state to export contraband of war to a belligerent is not unlawful; for, in view of the law of nations, the commerce of nations being perfectly free and unrestricted, if hostilities occur between two countries and they become belligerents, neither belligerent has any right to impose, nor to require a neutral government to impose, any restrictions on the commerce of its subjects. Still, however this might be in theory, there was scarcely a civilized state which had not acknowledged that it was wrong in a neutral to allow its ports to be made de facto the basis of hostile operations by permitting ships of war to be armed in and despatched from them. Foreign Enlistment Acts, therefore, formed part of the municipal legislation of most civilized states; but it still remained an unsettled question whether a neutral state could be justly accused of a breach of neutrality by a belligerent for suffering a domestic statute to be infringed to his disadvantage.

In examining this delicate question it is to be carefully borne in mind that domestic legislation by statute does not and cannot form the measure of international obligations. Acts of Parliament or of Congress may supply the machinery by which a state may be enabled to vindicate its own neutrality by process of law against its own subjects; but no statutes, however stringent, can limit the obligations of a neutral State, and the defective reach and grasp of municipal legislation may, it is conceivable, require to be supplemented by the higher equity of international law, in the light of which the domestic statute may, and ought, to be interpreted and applied. That so to enforce the law of a particular state involves, especially under a constitutional form of government, in many cases difficulty and delay, resulting in a defeat of justice, we know perfectly well, from what happened in the case of the Alabama. government is not on that account bound to alter its procedure, or its mode of administering the law, in order to gratify the susceptibilities, or minister to the advantage, of a belligerent state. And if a state with all necessary promptitude, "due diligence," does all that its municipal law in existence at the time empowers it to do, it may fairly be held to have discharged its duty towards a belligerent, and cannot be held responsible for any offences or omissions on the part of a subject, which, in spite of the utmost desire to administer the

But a

law with vigilance and good faith, cannot but sometimes occur. This, indeed, was not the view of the Tribunal at Geneva. One main head of the complaint then was that the municipal law of Great Britain as contained in the Foreign Enlistment Acts was insufficient to enable the British Government to enforce the observance of the duties of neutrality by its subjects. But Sir Alexander Cockburn on the other hand argues that the existing law was not so essentially defective as that the British nation could be held liable by reason of its imperfections. "For," he observes, "law with all human institutions is in a constant state of progress and change. New events, new conjunctures, new combination of circumstances, the lessons of experience from time to time point out to the lawgiver the necessity of altering the work of the past so as to adapt it to the requirements of the present." And he asks, "Is every amendment of the law to carry with it the condemnation of the legislation which preceded it?" A very difficult question to answer; raising a point of which the American lawyers in their argument were not slow to avail themselves. For, in the first place, as the Chief Justice admits, since the American Foreign Enlistment Act of 1818 had passed, the working of the legal administration in the United States was in one respect superior to that of Great Britain-in the important circumstance that in each district of the United States there was a resident legal officer of the Federal Government whose duty it was, if the action of the Government was invoked, to proceed against a suspected vessel, ascertain the facts, collect the evidence, and report to Government. In England there is no such officer. And secondly, with ourselves, it is a fact that the deficiencies of the Foreign Enlistment Act of 1819 have been amended, by the more particular provisions and the larger view of international obligation to be found in the recent Act of 1870. It was, indeed it must be, admitted, therefore, that a neutral Government is bound to supply itself with a municipal law sufficiently stringent to enable it to punish breaches of neutrality; and when that law has not been sufficient to meet the equity of a given case, and direct injury has in consequence resulted, it seems to follow that it is bound to make such retribution as the nature of the case requires. It is true that Sir Alexander Cockburn does not go this length: and holds that we were bound to act in strict accordance with the law as it stood at the time, and not seize a vessel when the evidence at hand was insufficient to justify such seizure. Technically, no doubt this is so; but in fact it was felt even before the recent negotiatioms that our municipal law was defective to meet the obligations of a true neutrality; and hence arose first the amended Act of 1870,

under which the important concession is made of allowing "knowledge or reasonable ground of belief" of the illegal destination of a vessel to be sufficient to justify her arrest; and later still, the three rules of the Washington Treaty made that "great and generous concession," as Sir A. Cockburn terms it, on the part of Great Britain, rather, however, in order to put an end to an existing cause of deep dissension between two great maritime Powers, than to make any radical change in those principles of the law of nations by which each professed to be bound.

Our space will not allow of our entering further in this difficult and interesting question. Possibly the true solution of the matter may be found to be in some such position as this: that it is the duty of a neutral state by every expedient of wise legislation to arm the Government with the machinery necessary for preventing and punishing any attempt on the part of private citizens to do such acts as would amount, or lead to, a violation of neutrality. And if-as was the case with the Alabama-the conduct of a Government in a past transaction is to be examined, and its past legislation tested in the light, so to speak, of a more advanced and rigid standard of conduct admitted to be the rule at the time of the inquiry, any injury arising from a defect in the municipal law at the time the alleged offence was committed should be met rather by the assessment of a given penalty as for such defect than by the artificial and anomalous expedient of giving to new rules of law, invented ad hoc, a retro-active operation, and thus investing with a constructive illegality acts which were admittedly not illegal at the time they took place. For, not to mention the uncertainty in which the principles guiding the conduct of nations are involved by such a procedure as this, and the discredit which such expedients casts upon international law, it must be recollected that it is entirely unknown what the future effect of such rules as those of the Washington Treaty will be, or how far they will make it difficult for any nation which has accepted them to maintain a neutral position; and this is a question which, as Sir Alexander Cockburn does not fail to point out, is of infinite importance to neutral states, especially those which are not of the first rank, who, as he puts it, "may be drawn within the vortex of wars in which they have no concern, if they are not only to be harassed and troubled by the demands and immunities of jealous and angry belligerents, but are in addition to be held responsible-to the interest perhaps of millions--for errors of judgment, accidental delay, judicial mistake, or misconduct of subordinate officers acting not only without their sanction, but possibly in direct contravention of their orders. If," he goes on to say, "it is to be established that these rules carry with them a liability so

extensive, I should very much doubt any invitation to other nations to adopt them would be attended with much success." And of course, it may be added, until such agreement has been arrived at, and incorporated into the common law of maritime powers, the rules remain without that general sanction which, as has been frequently observed, alone gives force and efficacy to what is known as international law; while the consent of other nations must of necessity depend on the practical interpretation which the rules may be made to bear.

On the whole, judging from the reception which the verdict of the arbitrators at Geneva has met with, it is impossible to affirm that its influence on the law of nations will be for good. Hitherto the respect paid to the decisions of those great magistrates who in this country and in America have expounded and illustrated public law has been undoubted. The opinions of Story, Marshall, and Washington in America, and of Lord Stowell in England, have commanded the assent and elicited the admiration, of civilized communities. As contrasted with the exhaustive analysis of the various points of international law contained in the judgments of these eminent civilians, the verdict and opinions of the tribunal-the assessors rather at Geneva cease to have any judicial value whatever. And we must remember, also, that although the operation of the three rules may be unequal according as the nation accepting them is, or is not, a maritime power, there can be but little doubt that their general scope must be regarded as tending to narrow the rights of neutrals against belligerents, while, on the other hand, they expand the rights of belligerents as against countries standing aloof from the contest. The acceptance of the rules therefore will probably have a distinct influence in obstructing the further development of maritime rights, even if they are not considered as marking a decidedly retrograde movement. However this may be, one fruit the Court of Arbitration at Geneva has borne, it has been the occasion of giving to the world the reasons of Sir Alexander Cockburn for dissenting from its award; a document which, whether regarded as an historical retrospect, or a judicial examination of the points involved, will equally be found of value and deep interest to the student of international law.

VII. THE PERSONAL CHARACTER OF OBLIGATIONS IN ENGLISH LAW.

B.

IV. CONTRACTS WITH UNCERTAIN PERSONS (continued).

HE persons who are to be the debtor and creditor THE in an obligation are usually and regularly determined by some event in which a particular individual is immediately concerned, and by which he is ascertained as the party to whom the legal effects of the transaction attach. But the person may also become invested with the legal right or duty in another and more artificial manner, depending on some general attribute which may be found in completely different individuals.

Now this kind of artificial determination of the parties to an obligation takes place more especially in connection with some particular portion of property. Ownership, a real right, or possession, may be the attribute by which the creditor, or the debtor, or it may be both, is or are to be ascertained, although none of these things have in their own nature anything to do with obligations.*

This class of exceptions is now to be considered, so far as contracts are concerned. It is of much importance, and presents in some respects considerable difficulties, which not being treated from any uniform point of view have of late years led to something very like a real conflict between common law and equity. Under this head come— Mortgage debts.

Rent charges and other annual payments charged on land independently of tenancy or occupation.

Personal rights and duties ex contractu attached to the enjoyment of interests in property. These may subsist in the case of land between landlord and tenant, vendor and purchaser, or purchasers from a common vendor. Of these in order.

1. It is clear that in equity, by the assignment of a mortgage security, the debt necessarily passes as incident to it; and that to constitute a valid assignment, as between the original creditor and the assignee, notice to the mortgagor is not

* Savigny, Obligationenrecht, sec. 15 (i. 132).