Great Britain and the United States. It has been stated that the American Government has proposed to submit it to arbitration, and has even suggested that it be decided by the Geneva tribunal. It is true that we find in the history of the U. S. a few precedents in which the interpretation of treaties has been left to arbitration. It was thus that the difficulties, which arose between Great Britain and the United States, respecting the meaning of certain clauses of the Treaty of 1783, the Treaty of Ghent and the Oregon Treaty were settled by special commissions. But in those instances, the ar bitrators' award could not in any manner compromise the national honor of either party, while the reference of even unforseen (although direct) damages to arbitration could be made only on the assumption that Great Britain acted, or at least may have acted, in bad faith; for in law, as we have seen, this class of damages is admissible only where there is bad faith. Great Britain would then be treated as guilty, not of fault or negligence merely or of a quasi-delict, but of a delict, and indeed almost a crime. We can therefore easily understand the indignation of the English people on seeing the Alabama indirect claims pressed on the notice of the Geneva Tribunal. For the same reason any offer to submit the admissibility of these claims to arbitration is altogether futile. In our humble opinion, there remains no other means of settling the dispute in a quiet and honorable manner, than the withdrawal of the indirect claims by the United States.

But if the American Government persists in these claims-and we know it to be characteristic of that Government to advance claims very often, and withdraw them very rarely-what will be the decision of the English Cabinet? Will it withdraw from the arbitration? Will it expose the nation to the horrors and dangers of a disastrous war. A war with the United States would certainly be very unpopular in America. The equivocal attitude of England towards the South, during the late great struggle, gives her no hope of a diversion in that quarter; the South will choose rather to remain quiet under the yoke of the negroes, than come to the aid of the nation which it calls by the epithet of "perfidious Albion." And even in the North, the British Provinces, which see in the Alabama Claims only the source of the humiliations and of the enormous sacrifices imposed upon them by the Treaty of Washington, have already commenced to agitate publicly the policy of breaking rather than strengthening the colonial tie.

There is a further reason which renders an Anglo-American

war a very improbable contingency, namely, the unvarying policy of Great Britain towards the United States during the last fifty years.

Lord Derby, recently speaking of the Treaty of Washington in the House of Lords, observed that "when the American negotiators found that up to that time the more they asked the more they got for such has been their uniform experience—I am not surprised that this led them to continue the game they had played with so much skill and so much success." No language could be more accurate than that in which the noble lord thus describes the policy pursued by the United States towards Great Britain.

By the Ghent, the Ashburton and the Oregon Treaties, she surrendered immense tracts of country, which would at the present time be of incalculable value to Canada; and that without any consideration, and although it was as clear as noonday that in some instances, notably in the case of the North-Eastern Boundary of Maine, the American Government was not only destitute of the shadow of a valid claim, but was acting in downright bad faith.

After having, with the aid of treaties and cenventions, pushed their encroachments upon the territory of the Empire to an extent surpassing their most sanguine expectations, they now seem to cast wistful and longing eyes upon the sovereignty of the seas. They need the Island of San Juan to enable them to command the entrance of the gulf, which divides Vancouver from the mainland; they at once inform Great Britain that it is theirs by virtue of the first clause of the Oregon Treaty, and they wrest from her an agreement to abide by the arbitary decision of the Emperor of the Germans.

They covet the rich and inexhaustible fisheries of the British provinces; they wish to obtain possession of them without any trade equivalent, and they tell Great Britain in substance: "Here are a few thousand dollars for the semi-sovereign and irresponsible Government of Canada; make it give up to us its bay fisheries. and the three miles of sea over which it exercises jurisdiction," and England, after a faint resistance, gives her word of honor that this privilege shall be obtained for them.

The navigation of the River St. Lawrence and its 220 miles of canal, on a footing of equality with Canadian subjects, is indispensible to 17,000,000 of people in the Western States; and the

American Government boldly demands the right of way for ever, in exchange for the free navigation of the Sault Ste. Marie Canal (one mile and a half in length) and the winter transit of Canadian merchandise by the railways of the Union for ten years; and Great Britain consents.

But this is not all. It is not enough that the colonies should be sacrificed to the boundless ambition of the aspiring Republic, it is necessary to humble the mother country also.

Contrary to the expectations of foreign diplomats, the United States does not hesitate to demand an apology for the depredations of the Alabama, and that apology they, after some days spent in tergiversation, succeed in wresting from their reluctant rival.

To insure the ultimate triumph of their cause before the Tribunal of Geneva, they draw up and distinctly define certain rules of international law, and present them to Great Britain with the haughty words: "We do not wish the Court of Geneva to decide what duties the law of nations requires from a neutral power; we demand not only that you abandon the principles which you have hitherto professed, and on which you have always acted, but that you likewise submit your conduct, past, present, and to come, to the test of our three ex post facto laws, and that you invite all other nations to give their adhersion to them." And England again submissive says: "Yes, for peace sake."

Finally, the American Government, while expressing the noblest contempt for money, desires to replenish the coffers of the national treasury, and in time of peace, and as the price of its friendship and good will, advances a claim to a war indemnity against a neutral state, nearly equal in amount to that wrung from France by victorious Prussia. What course will Great Britain adopt-she who has never seriously resisted the clamorous demands of her transatlantic sister? She is certain to pay, in some shape or other, a larger sum than the amount of the Alabama direct claims, or the $14,000,000, with interest, mentioned in the proceedings of the Joint High Commission! And will the United States be then satisfied? Never, so long as the British Empire and other European nations retain a vestige of power upon the northern continent of America!

Montreal, 30th March, 1872.

D. GIROUARD.

EXPROPRIATION.

(Continued.)

STATE OF THE LAW AT ROME.

The law of expropriation, as an organized system for the protection of the citizen against arbitrary power, and for reconciling private rights with the general interests of the community, is beyond question the product of the present century and of its innumerable public enterprises. But while we need not look beyond this century for guidance on the subject, still it must ever be a matter of interest to enquire into other systems of former times. Hence amidst the impulse given to the study of the law of expropriation in our day, especially in France, it was most natural that writers should direct their inquiries to that great body of law, so rich in its provisions on nearly all the relations of life, which has furnished the staple of the laws and civil institutions by which modern nations are even now governed. One result of these enquiries has been to establish that the references in the Roman law to anything like expropriation are meagre and in striking contrast with the stupendous public works constructed by the Roman people in every period of their history and in every quarter of the ancient world-works "which even now in their ruins furnish some idea of the greatness of Rome to thousands on thousands who have never read a page of her history."

But while there is general agreement as to the meagreness of the Roman law on the subject, this very meagreness contrasted with the fullness of that law on other matters, and the importance and number of Roman public works, has led different writers to entirely opposite conclusions as to the existence of expropriation in Roman law. Some have thence inferred that expropriation, or such a thing as the State taking possession against the will of private individuals, was unknown to the Romans, and impossible; while others, from the same premises, have gone to the other extreme, and come to the conclusion that there must have been a special system of legislation on the subject, which has not descended to us, it being well known that only a small portion of the vast mass of Roman law, and that chiefly private law, was

embodied and survived in the compilations which are the existing sources of our knowledge of Roman jurisprudence.*

Among those who have put forth the opinion that no expropriation of any kind was known to the Romans, are such names as Proudhon, Domaine Public, 11, p. 198; and Laboulaye, Histoire de proprieté, 11, 2.

Proudhon says: "Chez les Romains l'expropriation pour cause d'utilité publique était inconnue : le refus d'un particutier limitait la puissance de l'État: soit par oubli du législateur, soit à dessein, la volonté de tous était obligée de fléchir devant l'obstination d'un seul citoyen. Ainsi l'Empereur Commode (Augustus) se trouva dans la necessité de renoncer à l'idée d'élargir le forum par respect pour les droits qui refusaient de s'abdiquer."

In addition to this passage from Suetonius, there are several others which give an appearance of reality to the views stated by Proudhon. Thus Livy, XL. 51, says that the censors (who with the aediles had the superintendance of the aqueducts during the times of the Republic), were thwarted in their scheme of building a new aqueduct in the year 179 B.C., by Licinius Crassus, who refused to allow it to be carried through his land. "Locârunt (censores) aquam adducendam fornicesque faciendos: impedimento operi fuit M. Licinius Crassus, qui per fundum suum duci non est passus."

When, however, we consider, as we must, the history, career, and spirit of the Roman people, we come to the conclusion that these passages have some other meaning than that apparently, on their face, deducible from them. They must mean something else than that it was in accordance with the spirit of Roman law and policy that the nation, as stated by Proudhon, should stand baffled in its greatest enterprises by the obstinacy of one of its individual members. Such was not the spirit or policy of Rome. It is not credible that a state of things which is impossible in any civilized State was possible with the Roman people, who, says Batbie, "fut le plus grand constructeur de l'antiquité." Even lately (1855) portions of the public works of the ancient monarchy have been brought to light, in the great Servian wall, which, to use the words of Mommsen, "have risen as it were from the tomb to testify to the might of a national spirit as imperishable

* See the question well discussed in Bauny de Récy; Exp.