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'_ ...^r'^ '
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•y »r
X-vw;f~ :i-o.S'
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l^arbarli College library
FROM THB BBQJJKST OF
CHARLES SUMNER, LL.D.,
OF BOSTON.
(CUss of xSao.)
''For Books relating to Politics and
Fine Arts."
S V
THE INTERNATIONAL LAW ASSOCIATION.
33. CHANCERY LAVf, LONDON, W.C
REPORT
or THS
NINETEENTH CONFERENCE
HELD AT
ROUEN,
August 21st to 24th, 1900.
Price to Non-Subscribers: Three Shillings and Sixpence,
LONDON J
By WILLIAM CLOWES & SONS, Limited,
a;, FLEET STREET, E.C.
1901.
REPORT
OP THE
NINETEENTH CONFERENCE
THE INTERNATIONAL LAW ASSOCIATION
33, CHANCERY LANE, LONDON, W.C
REPORT
OF THE
NINETEENTH CONFERENCE
HELD AT
ROUEN,
August 21st--24th» 1900.
LONDON
Published for the Association
By WILLIAM CLOWES AND SONS, Limited
27, FLEET STREET, E.G.
1 901
X >^^ ^ O • ^
NOV 25 1901
LOfJDON:
PRINTED BY WILLIAM CLOWES AND SONS, LIMITED,
STAMPOKD STRBBT ANt> CHAKINC CROSS.
PREFATORY NOTE,
The Nineteentii Conference of the Association is remarkable as
being its first visit to France. It had long been a cherished
desire of the Council that an Association like ours, designed to
perfect and assimilate the law and practice of nations as regards
their commercial and social relations, should visit the country of
Cujas, Montesquieu, Domat, Foelix, Em^rigon, Ortolan, Haute-
fenilley and of the Code Napoleon. A favourable occasion pre-
sented itself in the holding of the great International Exhibition
in Paris, by which the- French nation had determined to mark the
dose of the century ; but, in view of the multiplicity of congresses
held in Paris during the Exhibition, it was thought more advisable
to meet, not in the capital, but in some other city of France which,
while being central enough to be within easy reach of foreign visitors,
should, at the same time, offer greater facilities than Paris for the
quiet and deliberate consideration of questions of international and
commercial law. Rouen, the ancient capital of Normandy, pos-
sessing Gothic edifices which are among the chief architectural
glories of France, a flourishing and busy port of easy access from
the sea (as was demonstrated ocularly to its visitors), and a society
of mercantile and legal gentlemen ready to welcome those of like
pursuits and tastes from other countries, seemed peculiarly suitable
for the purpose ; and it was therefore with great satisfaction that
the Council accepted the cordial invitation of the Municipality
and the Chamber of Commerce of Rouen to hold the Conference
in their axicient city*
The attendance at the Conference justified this choice. The
President of the Association, an eminent judge of the United
( 6 )
States, was supported by two judges of the High Court of England,
the ancien b&tonnier of the Rouen ordre des avocats^ an eminent
Japanese jurist, the president of the British Chamber of Com-
merce in Paris, and by leading maritime and international
lawyers and representatives of shipping interests and philanthropic
societies from Belgium, France, Great Britain, and the United
States ; Paris including in its contingent an Italian and a Dutch
lawyer.
The work of the Conference covered a wide field. The thought-
ful and comprehensive inaugural address of the President, on the
subject of the part taken by courts of justice in the development
of international law, was followed by a carefully considered report
prepared by the American members of a committee appointed
last year at Buffalo to consider the conventions signed by the
Conference of the Hague (which have since been ratified by
nearly all the parties thereto), which was adopted by the
Conference ; and resolutions were passed respectively calling the
attention of shipping circles to the measures which have been
undertaken at great cost to make Rouen a safe port, and (at the
instance of a Rouen member) urging the importance of using
steering directions in navigation having the same meaning in all
languages, in order to avoid mistakes which in the past have
caused lamentable losses of life and property. Valuable papers
were also presented on the Progress of Arbitration, the Doctrine of
International Intervention, Progress towards the Abolition of
Slavery, and the Prize Decisions of the United States Courts during
the war between Spain and the United States. On three other
subjects, namely : international rules of marine insurance, foreign
judgments, and the immunity of private property at sea (all of
which were touched on, and the first of which made great
progress at Buffalo last year) the discussions, although no definite
conclusions immediately resulted from them, yet were of consider-
able utility in clearing the ground for subsequent consideration.
As regards marine insurance, a set of international rules on the
lines of those framed and brought forward by Mr. Carver, Q.C., at
Buffcilo last year, was presented as the work of an Anglo-American
( 7 )
Committee which mcluded gentlemen of the highest legal and
practical knowledge of this subject, and the English section of which
was fortunate m having for its president a judge of the English
High Court, who has had a life-long experience of English com-
mercial law. Unfortunately it appeared in the discussion that
neither the British shipowners nor the continental representatives
were prepared to accept the rules without further consideiation ;
and the subject was accordingly postponed till die next Confer-
ence, when it is hoped that the Association will be able to give its
imprimatur to a set of rules which shall do for marine insurance
what the Yoik-Antwerp rales did for geneml average. In order to
give these important proposals greater publicity, a report of the dis-
cussion on this subject has been separately printed for circulation
among shipping and underwriting circles in various countries. As
regards foreign judgments, the unfortunate absence of two well-
known English international lawyers and writers, one of whom had
prepared valuable material for discussion in his draft convention
and rules of jurisdiction for international adoption, while the other
had contributed valuable criticisms of these proposals, necessitated
the holding over of the question till the next meeting ; but the
appointment of a fresh committee, representative of four countries,
to report on the subject to the next Conference, should enable the
Association to complete the consideration of a subject which
has been before it for twenty years. The topic of the immunity
of private property at sea from capture during war — ^a doctrine
of public international law which will no doubt occupy general
attention in the future — was introduced by valuable reports
from American and European sections of a committee; but the
discussion which followed revealed such wide divergences of
opinions and interests between the American and European views
on the subject, that the Conference was unable to arrive at any
but a negative conclusion.
The social side of the Conference, as has been the good fortune
of its predecessors, was of the most agreeable kind, and the
visitors from other countries and other parts of France carried
away a grateful remembrance of the courteous welcome and
( 8 )
thoughtful hospitality extended to them by their hosts. Our
hearty thanks are due to the Prefect of the Seine Infiriture^
M. Mastier, M. Waddington and the Rouen Chamber of Com-
merce, the Mayor and Municipality of Rouen, M. Octave Maiais
and the members of the Rouen Bar, M. Ernest Deshayes and
other gentlemen who contributed to render our stay in Rouen
profitable and agreeable.
A resolution of the Conference directed the Executive Council
to take steps for holding a Conference next year either in Scotland
or in one of the Scandinavian capitals, in the hope of coming
to definite conclusions on the subjects carried over from the
Conference; and we are glad to be able to say that arrangements
are in progress for holding the next Conference in Glasgow,
in connection with the International Exhibition of Science
and Arts in August 1901.
JOSEPH G. ALEXANDER,
GEORGE G. PHILLIMORE,
Honorary General Secretaries.
London, Dectmbcr 1900.
( 9 )
CONSTITUTION OF THE ASSOCIATION.
L The name of the Association shall be " The IntematioDal Nam.
Law Association."
II. The Association shall consist : — Membew.
I. Of all those who participated in the Conference at
Brussels, commencing the nth October, 1873 ;
a. Of all who on their application are or who shall be
admitted by this Conference, or by a future one, or
by the Executive Council ;
3* Of such delegates from other Associations, formed for
the prosecution of the same objects, as may be
approved by the Executive Council ; each of which
Associations is to be entitled to nominate from
time to time two delegates ;
4. Of Honorary Members.
III. The objects of the Association shall be the Reform and obiectt.
Codification of the Law of Nations. Its relations with the
Institute of International Law, founded at Ghent in September
1873, shall be such as were determined by the Conference at
Brussels in October 1873.
IV. There shall be an Honorary President, a President, Officers.
Honorary Vice-Presidents, Vice-Presidents, a Treasurer, a
Councilofsixty Members, of whom eighteen shall bean Executive
Council, and a General Secretary, with such other Secretaries
and Officers as the Executive Council may from time to time
appoint.
V. At each Annual Conference the Presidents and other Kiectio. of
Olfioen.
Officers shall be appointed for the year ensuing, and shall con-
tinue in office until others are appointed. The office of President
( 10 )
shall not be tenable for more than two successive years. The
office of General Secretary shall be permanent, subject to change
by the Association at any Annual Conference. The duties of
the General Secretary and of the other officers shall, except as
herein provided, be fixed by the Executive Council
Funcdon of VI. The Exccutivc Council shall have the general direction
Executive . ,
CouncU. of the affairs of the Association in the intervals between the Con-
ferences. It shall have power to appoint Vice-Presidents, to
make Bye-laws, to appoint Committees for special objects, to fill
vacancies occurring between the Annual Conferences, and to fix
upon such place or places of business as may be expedient It
shall also have the power of nominating Honorary Vice-Pre-
sidents, approving Local Committees, and nominating for the
year all such officers as the Association shall omit to nominate
at its Annual Conference. The President, Vice-Presidents,
Treasurer, and Hon. General Secretaries shall be ex-officio Members
of the Executive Council. Five Members shall constitute a quorum
of the Executive Council, inclusive of any ex-officio Members who
may be present at the meeting of the Executive Council.
Cociferences. VII. There shall be an Annual Conference of the Association,
to be held at such time and place as shall have been appointed at
the preceding Annual Conference or by the Executive Council,
and also such other Conferences as in the opinion of the Execu-
tive Council circumstances may render expedient.
Qw»™n- VIII. The Members present at the time and place fixed for
the opening of an Annual Conference shall constitute a quorum
for the transaction of business.
v^^^ ^^ '^^ order of business at each day's meeting shall be as
follows : —
1. Reading the minutes of the preceding meeting, unless
the reading is dispensed with by a vote of the Con-
ference ;
2. Receiving such communications as may be recom-
mended by the Executive Council for the con-
sideration of the Association ;
{ " )
$, Discttssmg such propositions as roaj be recoinmended by
the Executive Council for discussion, and disposing
thereof as the Conference may determine.
X. The language in which the discussions shaU be carried on L«uigiM««.
and die minutes kept shall be that of the countiy where the
Conference is held, unless the Conference otherwise direct ; but
each Member may write or speak at his option in hb own
language.
XI. A Member shall not speak more than once on the same siMchM.
subject, except in reply or explanation, and not more than ten
minutes at a time, except by leave of the Conference.
XIL After each Annual Conference its Transactions shall be JmnMc
published in a volume, under the direction of the Executive
Council, which volume shall contain the Minutes of the Con-
ference and such papers as may be ordered to be printed.
XIIL Each Member of the Association shall pay to the Cmtritw.
Treasurer an annual sum of One Pound sterling, or its equivalent,
or a sum of Ten Pounds sterling, or its equivalent, for life
membership. Each Association admitted to membership shall,
however, be required to pay an annual sum of Two Pounds
sterling or its equivalent Each such Association may nominate
to any Conference any number of delegates not exceeding five,
provided that for every delegate beyond two such Association shall
pay a further sum of One Pound sterling, or its equivalent
XIV. No expenditure shall be made, nor liability incurred, Expeodi-
beyond the amount of funds in the hands of the Treasurer.
XV. This Constitution may be amended at any Annual Con- Amcndmcfii
ference by a vote of three-fourths of the Members present ; two tiuiu
days' previous notice having been given of the motion to amend.
OFFICERS OF THE ASSOCIATION.
The Rt. Hon. Lord Alvbestone* G.C.M.G., D.C.L., Lord Chief
Justice of Englmnd.
The Hon. Simeon E. Baldwin,
Judge of Snpreme Conrt of Errors, Connecticut, and Professor of
Constitntional Law in Yale UniTernty.
AMERICA (UNITED STATES).
Hon« Banckoft Davis, late Minister-Plenipotentiary at the Court of Berlin.
Hon. Carl Schurtz, late Seaetary of the Interior.
BELGIUM.
Baron Lambermont, Ministre d'tut,
CANADA.
Rt. Hon. Sir HENRY Strong, Chief Justice of Supreme Court, Ottawa.
CHINA.
His Excellency Kuo-Taj-in, late Envoy-Extraordinary and Minister
Plenipotentiary at the Court of St. James's,
FRANCE.
Monsieur A. Boucher-Cad art. President of the Court of Appeal, Paris.
Monsieur Richard Waddington, Senator for the Department of the Seine
Inferieure, and President of the Rouen Chamber of Commerce.
( M )
ITALY.
P. BosELLT, Secretary of State for Industry and Commerce, Preddent of the
Academy of Sciences, Turin.
JAPAN.
His Excellency Viscount Kawasse Masataka, late Envoy- Extraordinary
and Minuter- Plenipotentiary at the Court of St. James's.
NETHERLANDS.
F. B, Coninck-Ltefsting, Vice-President of the Supreme Court of the
Netherlands.
AUSTRIA His Excellency Ritter Dr. Karl von Scherzer,
Trieste.
CAPE COLONY ... Rt. Hon. Sir J. H. De Villiers, K.C.M.G., Chief
Justice, Capetown.
DENMARK Dr. C. Goos, Ministre des Cnltes, Copenhagen.
„ Dr. Jur. A. HiNDEN BURG, Attorney-General, Copen-
hagen.
ENGLAND .*. ... The Hon. Sir William R. Kennedy, Judge of the
High Court of Justice, London.
„ The Hon. Sir John Bigham, Judge of the High
Court of Justice, London.
„ The Hon. Sir Walter G. F. Phillimore, Bart.,
D.C.L'., Judge of the High Court of Justice,
London.
M Thomas Barclay, LL.B., Ph.D., President of
the British Chamber of Commerce, Paris.
FRANCE M. Arthur Desjardins, Premier Avocat-G^n^tal
k la Cour de Cassation, Paris.
„ M. l^DOUARD Clunet, Avocat k la Cour d'Appel,
Paris.
„ M. Octave Marais, Ancien BMonnier de Tordre
des Avocats, Rouen.
GERMANY Dr. F. Sievekinc, President of the Hanseatic High
Court of Appeal, Hamburg.
ITALY Chas. F. Gabba, Professor in the University of
Pisa.
„ Comm. Aug. Pierantoni, Senator of the Kingdom
and Profesbor in the University of Naples.
„ Marchese Alessandro Corsi, Professor in the
University of Pisa.
( IS )
JAPAN Professor Sakuy£ Takahashi, Profewor of Law,
LL.D., Imperial Naval Staff College, Tokio.
NETHERLANDS ... Dr. T. M. C. Assbr, Counsel to the MinUtry of
Foreign Affair^ and Professor in the University
of Amsterdam.
SWEDEN Dr.S. A. Hedlund, Member of the Pint Chamber,
Gothenburg.
UNITED STATES... Hon. Chas. A. Peabody, New York.
„ ... Hon. Robert D. Benedict, LL.D., New York.
9ounc{L
Ckairwum oftki Exicutivi Councii:
The Hon. Sir Walter G. F. Philumore, Bart., D.C.L.
•The President, *
•The Vice-Presidents, I _. ^ .
The Treasurer, \ Ex officii.
•The Hon. Gen. Secretaries,/
♦Arnold, W., London.
AuTRAN, Dr. F. C, Marseilles.
Berlingieri, Prof. Aw. Francesco, Genoa.
Bensa, Prof. Enrico, Genoa.
•Brown, Joseph, Q.C, London.
•Brunard, Hubert, Brussels.
•Carver, T. G., Q.C, London.
Caveri, Att. Maurizio, Genoa.
Coudert, F. R., New York.
•Darby, W. Evans, LL.D., London.
Deshayes, Ernest, Rouen.
Dickson, Oscar, Gothenburg;.
•Elmslie, K. W., London.
Fromageot, Dr. Henri, Paris.
Glover, Sir John, London.
GovARE, Dr. Paul, P^ris.
♦Hill, Gray, Liverpool.
Kelvin, Lord, LL.D., F.R.S., Glasgow.
•McArthur, Charles, M.P., London.
MiNGOTTi, Comm. Giuseppe, Genoa,
Passy, Fr£d]^ric, Paris.
♦Pears, E. A., London.
Peborgh, E. van, Antwerp.
Platt, Ch., Philadelphia, U.S.A.
•Raikes, F. W., LL.D-, Q.C, His Honour Judge, Malton,
Yorkshire.
Rawle, Francis, Philadelphia.
•RoLiN, ^douard, Brussels.
* Members of the Executhre Council.
( i6 )
•Scott, Sir John, K.C.M.G., London.
Shand, Right Hon. Lord, P.C, London.
•Snaps, Aldennan Thos., LiTerpooi.
Stocquart, Dr. Chas. A. Emilb, Brussels.
•Stubbs, Charles, M.A., LL.D., London.
•ToMKiNS, F. J., D.C.L., M.A., London, and Denver, U.S.A.
•Walton, Joseph, Q.C, London.
•White, John Bell, London.
The Rt Hon. Lord Avbbury, F.R.S.
RoBARTS, Lubbock & Co., 15, Lombard Street, London.
ilonorors general $ecrdarics.
J. G. Alexander, LL.B., Tunbridge Wells.
G. G. Phillimore, B.C.L., M.A., London.
Alexander Scott, London.
* Members of the Executive CoundL
( »7 )
MEMBERS OF THE ASSOCIATION.
An obdak (f) tigmfia JJft Mtmberthip,
Alorich, Hon. F. H., Moffat Building, Detroit, U.S.A.
Alexander, J. G., LL.B., 8, GroTe Hill, Tanbridfe Wells.
fALVRRSTONE, Rt. Hon. Lord, G.C.M.G., D.C.L., Lord Chief Juitice of
England.
Angier, Captn. T.V.S., 2, Whittington Avenue, London.
Arnold, W., 4-6, Throgmorton Avenue, London.
AssER, Professor T. M. C, Counsel to the Foreign Office, Amsterdmm*
Association op Average Adjusters, Capel Court, London.
AusTRO- Hungarian Lloyd's Steak Navigation Company, Trieste.
AUTRAN, Dr. F. C, 2, Rue de I'Ormeau, Marseilles.
AVEBURY, Rt. Hon. Lord, P.C, F.R.S., High Elms Farnborongh, Kent.
Bacon, Francis Jamrs, Cincinnati, Ohio, U .S. A.
Badcock, B. F., 17, Water Street, Liverpool.
Bailey, John Rand, Les Oliviers, Ciiuiez, Nice.
tBALDWiN, Hon. Judge Simeon E., 69, Church Street, New Haven, Conn.,
U.S.A.
Barclay, Thomas, LL.B., Ph.D., 17, Rue Pasquier, Paris,
Bartlett, Edmund M., 512, New York Life Buildings, Omaha, Nebraska.
Battersby, Dr. C. F. Harford, 139, Palace Chambers, Bridge Street,
Westminster.
Bell, E. S. Moberly, 98, Portland Place, London.
BiGHAM, Hon. Sir John, Judge of the High Court of Justice, London.
Benedict, Hon. Robert D., LL.D., 68, Wall Street, New York.
Bennett, S. C, Boston, Mass., U.S.A.
Bensa, Professor Enrico, 19, Via S. Bernardo, Genoa.
Berlingieri, Professor Aw. Francesco, Via Garibaldi 20, Genoa.
Blaess, Walther, 8, Rue Grammaye, Antwerp.
Blood, W. G., Keokuk, Iowa, U.S.A.
BoHLEN, F. F. Eduard, Consul-General, Gr. Reichenstraase 23-27,
Hamburg.
Bonaparte, Chas. J., LL.D., 216, Si. Paul's Street, Baltimore, U.S.A.
\V BORSEN-COMITi, Riga.
BOSELLI, P., President of the Academy of Sciences, Turin.
* Thp Secretaries will be glad to be informed of any ch^n^e of address.
C
( i8 )
fBoucHER-CADART, ALFRED, President dc la Cour d'Appcl, 19, Roe Pres-
bourg, Paris.
Bracciforti, Professor Dr. Conte Ferdinando, Via Boigo Spesso 23,
Milan.
Brainbrd, Cephas, Counsellor-at-Law, 47, Cedar Street, New York.
Breen, W. p., Fort Wayne, Indiana, U.S.A.
Brewster, Hon. Lyman D., Danbury, Conn., U.S.A.
Bristol, The Most Hon. the Marquess of, Ickworth, Bury St. Edmunds.
Britannia Steam Ship Insurance Association, Limited^ 17, Grace-
church Street, London.
British Shipowners* Mutual Protection and Indemnity Associa-
tion, 23, Rood Lane, London.
British Steamship Owners' Association, 26,. St. Thomas' Street,
Sunderland.
Brown, A. H., M.P., 12, Grosvenor Gardens, London.
Brown, Hon. Judge Addison, New York.
IBrown, Joseph, Q.C, 54, Avenue Road, R^ent*5 Park, London.
Brunard, Hubert, 9, Avenue de la Toison d'or, Brussels.
Butler, Chas. Henry, 71, Broadway, New York.
Buzzati, Prof. J. C, Pavia.
Cameron, J. D., Attorney-General, Winnipeg.
Campbell, Chas. Macalaster, Denver, Colorado, U.S.A.
Carver^ Eugene P., 28, State Street, Boston, Mass., U.S.A.
Carver, T. G., Q.C, 2, Garden Court, Temple, London.
Cassano, Prince, Paris.
Caveri, Aw. Maurizio, Campetto i, Genoa.
Chamber op Commerce, Antwerp.
Chamber of Commerce, Incorporated, Dundee.
Chamber of Commerce, Hamburg.
Chamber of Commerce, Leipslc.
Chamber of Commerce of America, Liverpool.
Chamber of Commerce, Rouen.
Chamber of Shipping of the United Kingdom, 5, Whittington
Avenue, Leadenhall Street, Xx)ndon.
Chancellor, Justus, Chicago, U.S.A.
Chauncy, Chas., 251, South Forth Street, Philadelphia.
C his holm, J. H., Halifax, Nova Scotia.
Clark, Martin, Prudential Building, Buffalo, U.S.A.
Clunet, E., Avocat k la Cour d'Appel, li. Rue Montalivet, Paris.
Clunie, J. M., I, Fenwick Street, Liverpool.
Collins, H. W., 3, Union Court, Castle Street, Liverpool.
Collins, J. H., Columbus, Ohio, U.S.A.
Comit^ des Assurkurs Maritimes de Paris, 50, Rue N. D. dcs
Victoires, Paris.
CoMiT^ DES Assureurs Maritimes du Havre, Havre.
Coninck-Liefsting. Dr. F. B., Vice-President of the Supreme Court of
the Netherlands, The Hague.
CoQKES, Thos. .^., 91, Gracccburch Street, London.
( »9 )
CoRSi, ProfcKor Marqnit Alessandro, Viale Umbefto 6, PiM.
CouDRRT, F. R., AdTocate, 71, Broadway, New York.
Cox, E. W. Sinclair, 2, Plowden Boildings, Tenple, Londoo.
Cranf, Nbwton, I, Essex Coart, Temple.
fCRAwsHAY, George, London.
Crosby, Jas. O., GarnaviUo, Iowa, U.S.A.
Darby, W. Evans, LL.D., Secretary of the Peace Society, 47, New Broad
Street, London.
Davtes, Julien T., M.A., LL.B., 33, NaMan Street, New York.
tDAVis, The Hon. J. C. Bancroft, late Mmister- Plenipotentiary of the
United States of America at the Conrt of Berlin, 162?, H Street*
Washington.
Dkscamps, Chevalier, Chitean de Gfismonster, par Ferrl^e, Li^
Deutscher Lloyd, Trenspoit-Vertichenings-Actien-GesellschaA, N 24,
Oranienburgerstr. 16, Berlin.
Dewey, Hon. Henry S., 23, Court Street, Boston, Mass., U.S.A.
Dickenson, M. F., Jun., 53, State Street, Boston, Mass.
fDiCKSON, Oscar, Member of the Swedish Parliament, Gothenburg.
DoRN, Dr. M. VON, Editor of the Triater ZfUung^ Trieste.
Drummond, W. v., Shanghai, c/o H. S. King ft Co., 65, Comhlll,
London.
Dumas, Jacques, Procureur de la R^obliqiie, Rethel.
Duncan, Lucius C, M.A., LL.B., 135, New Bond Street, London.
Duncker, Arthur, Hamburg.
DuNSTAN, W., 4-6, Throgmorton Avenue, L.ondon.
Dusseldorfer Allgemeine Versicherungs-Gbsellschavt, Diisseldorf.
Eaton, Amasa M., Providence, Rhode Island, U.S.A.
Edwards, £. E., 4, Chapel Street, Liverpool.
Edzard, Conrad, Rechtsaawalt, Bremen.
Eeten, E. van, 5, Jan Van Lier Straat, Antwerp.
Elmslie, K. W., Average Adjuster, 63, Comhill, London.
EiCERY, LuciLius, Ellsworth, Maine, U.S.A.
Enthoven, S. Jules, The Hague.
EwART, John S., Portage Avenue, Winnipeg.
Fbarnsidrs, J. W., 4, Brick Court, Temple, London.
Florance, £. T., 22S, N. Rampart Avenue, New Orleans.
FoLLETT, M. Dewey, Marietta, Ohio, U.S.A.
Folleville, Daniel de, Avocat ^ la Cour d'Appel, 22, Rue Clausel, Paris.
" FoKCifcRE,'* Compagnie d* Assurances, 12, Place de hi Bourse, Paris.
Forbes, Francis, 34, Nassau Street, New York.
FoRTUNATo, Ernesto, Aw., Gennaro Scnra 52, Naples.
FouLOM, Georges, 191, Chauss^e d'Txelles, Brussels.
Franck, Louis, Rue des Escrimeurs, 28, Antwerp,
French, A. G., 3, Pump Court, Temple, Londoti.
Frkokrickskn, F., Maritime Bureau, Christiania.
C 2
• ( 20 )
Frouageot, Dr. Henri, Avocat k la Cour d»Appel, i, Rue de Villcrsexcl,
Paris.
Frost, Edward W., Milwaukee, Wisconsin, U.S.A.
Gabba, Professor Charles Francis, Pisa.
Gagbr, £. B., Derby, Conn., U.S.A.
Gallardo, Jeronimo y de Font, Banco de Espafia, Toledo.
General Shipowners' Society, 5, Whittington Avenue, Leadenhall
Street, London.
Gbnicot, Francis, Dispacheur, Antwerp.
Gbrdes, a., Aux Cayes, Haiti.
Giannini, T. C. Aw., Via Ricasoli 20, Florence.
Glover, Sir John, 88, Bishopsgate Street, London.
Glyn, Walter, 20, Water Street, Liverpool.
Goos, Professor C, Ministre des Cultes, Copenhagen.
GoUBAREFF, D. N., Villa GoubarefT, Beaulteu, par Villefranche-sur-mer,
Alpes Maritimes, France.
GouRLiE, J, Hamilton, New York.
fGovARS, Dr. Paul, Avocat k la Cour d'Appel, 3, Rue de Stockholm, Paris.
Gray, Prof. John C, LL.D., 60, State Street, Boston, Mass.
Gregory, Prof. Chas. N., LL.D., Univcrwty, Wisconsin, U.S.A.
Halkier, Dr. Herman, Advocate of the Supreme Court, Kronprtnsesse-
gade 2, Copenhagen.
Hamm, Obcrstaatsanwalt, Cologne.
Harrington, C. S., Q.C, Halifax, Nova Scotia.
Ha&rison, Hon. Lynde, LL.B., New Haven, Conn.
Hartlepools Shipowners* Society, West Hartlepool.
Haynes, T. H., Billiter Square Buildings, London.
Hebard, F. S., Chicago.
Hedlund, Dr. S. A., Member of the First Chamber, Gothenbuig.
"Helvetia" Allgemeine Versicherungs-Gesellschapt, St. Gall.
HSMENWAY, Alfred, 334 & 338, Tremont Bmlding, Boston, U.S.A.
Henderson Brothers, 4, St. Mary Axe, London.
Hennebicq, L^on, I, Rue de Langaune, Brussels.
Hevne, W. D., 24, Hackin*s Hey, Liverpool.
Hildebrand, Senator H., Domsheide 10-12, Bremen.
Hill, Gray, 10, Water Street, Liverpool.
Hindenburg, Dr, Jur. A., Attorney-General, Dronningens Tvergade 40,
Copenhagen.
Hines, Clark B., Belleville, Ohio, U.S.A.
HiNKLSY, John, 215, N. Charles Street, Baltimore, U.S.A.
HooRiCKX, Gaston, Rue de Livoume 14, Brussels.
Hornblower, W. B., New York.
Howe, Hon. Judge Wm. Wirt, New Orleans.
HoYE, Stephen M., 189, Monlagne Street, Brooklyn, New York.
fHucHTiNG, G. W., Bremen.
Hughes, John, ex-Mayor, Liverpool.
( 21 )
HuGHKs, R. M., Norfolk, Virffinta, U.S.A.
HuLL,T. M., Incorporated Law Society, 13, Union Court, Liverpool.
HuMTBK, J. W., Antwerp.
Hydb, Chas. Cheney, M.A., The Tacoma, 1007, Chicago.
Institute OP London Underwriters, i, St. Michael's House, Comhill.
ISACHSEN, H., GrimsUd, Norway.
"Italia" Societa d'Assicurazioni Marittime, Fluviale e Ter-
RRSTRI, Genoa.
tjACKsoN, Thomas Cathrick, LL.D., Victoria Chamben>, Hull.
tjACKSON, Andrrw Marvel, Victoria Chamben, Hull.
Jackson, J. H., Mersey Chambers, Old Churchyard, Liverpool.
Jager, George, Jun., 7, North John Street, Liverpool.
James, F. B., Ohio, U.S.A.
Jitta, Professor D. Joseph us, Keiiersgracht 808, Amsterdam.
Jones, Stephen R., 58, State Street, Boston, Mass., U.S.A.
Kabmmbrer, Dr. A., Rechtsanwalt, Hamburg.
Kaufmannschaft, Die Aslt&stb der, Berlin.
Kaufmannschapt, Die Vorsteher der, Konigsberg.
Kelvin, the Rt« Hon. Lord, LL.D., F.R.S., Glasgow.
tKzNNEDY, Hon. Sir William Rann, Judge of the High Court of Justice,
94, Westboume Terrace, London.
KiRLiN, J. Parker, 168, West Fifty-eighth Street, New York.
Kuo-Taj-in, Hb Excellency, late Chinese Minister in London, Peking.
Laxisz, C. Ferd., Neuebnig 14, Hamburg.
Lambermont, Baron, Ministre d'lfetat, Brussels.
Langlois, Jacques, Antwerp.
Laroche, H., 8, Rue Br^ontier, Paris.
Lbcourt, Arthur, 34, Rue de Minimes, Brussels.
Lbjbunb, Charles, Courtier d' Assurances, 53, Reropart Kipdorp, Antwerp.
LEMPRiiRE, Charles, D.C.L., St. John's College, Oxford.
Leval, Gaston de, 22, Rue Lebeau, Brussels.
Levy, J. A., Amsterdam.
Liebe, C, President of the Senate, Copenhagen.
Lindley, Robert, Average Adjuster, 3, Royal Exchange Buildings,
London.
Liverpool Average Adjusters' Association, 8, Harrington Street,
LiYerpool.
Liverpool and London Steamship Protection Association, 10^ Water
Street, LiverpooL
Liverpool Sailing Shipowners' Mutual Protection and Indemnity
Association, Liverpool.
Liverpool Shipowners' Association, 18, Water Street, Liverpool.
Liverpool Steamship Owners' Association, 10, Water Street, Liver-
pool.
Liverpool Underwriters' Association, Exchange Buildings, Liverpool.
( " )
Logan, W.lL., 27, William Street, New York,
London Steamship Ownkrs' Mutual Insurance Association,
Limited, 23, Rood Lane, London.
Love, Alfred H., Philadelphia.
Lumpkin, Hon. J. H., AtlanU, Georgia, U.S.A.
Lyon-Caen, Charles, 13, Rue Soufflot, Paris.
McArthur, Charles, M.P., 61, Cornhill, London.
McClain, E., Iowa City, U.S.A.
McDoNELL, Olaster John, 26, Belsize Avenue, London.
MacLellan, Judge S. D., Truro, Nova Scotia.
Malandrin, Raymond, Rouen.
Manderson, Hon. Chas. F., Omaha, Nebraska.
tMANNHEiMER, T., Bank Director, Gothenburg.
Marais, Georges, i i bis, Rue de Milan, Paris.
Marais, Octave, Rouen.
Marcoartu, His Excellency Don Arturo de, Madrid.
Marsden, R. G., 5, New Court, Carey Street, London.
Marsh, Craig Adams, New Jersey.
fMASATAKAf His Excellency Viscount Kawasbe, Ute Japanese Minister to
the Court of St. James's, Tokio.
Mather, John, 8, King Street, Manchester.
tMERCER, George Gluyas, D.C.L., Drexel Building, Philadelphia.
Messageries Maritimes, Comfagnis pes, i, Rue Vignon, Pftris.
Meulen, J. TBR, Heerengracht 248, Amsterdam.
MiNGOTTi, Comm. Giuseppe, Piazza San Lorenzo 16, Genoa.
Monckeberg, Dr. Rud., Hamburg.
Morgan, Alfred Fairfax, 39, The Parade, Leamington.
Morris, John, Jun., Fort Wayne, Indiana, U.S.A.
Morris, Robert C, D.C.L., 35, Nassau Street, New York.
MouRASS^, Harouo, 24, Harukimatchi, Santchome, Hongo, Tokio.
Munro, G. L., J. p., g6t Highbury New Park, London.
Murray, Dr. D., 169, West George Sueet, Glai^ow.
Myndbrse, Wilhbuius, 54, Wall Street, New York.
tNAGAOKA, JusHiE M. Y., c/o Jusamni Hosokawa, Hamako, Tokio, Japan.
Natusch, F. B. B., I, Fmch Lane, London.
Newcastle Protection and Indemnity Association, Newcastle-on-
Tyne.
NlNAUVE, Fr^o^ric, 16, Rue Wattau, Brussels.
North of England Iron Steamship Insurance Association, New-
ca«tleH)n-Tyne.
North of England Protecting and Indemnity Association, Mari-
tiaie Buildings, Newcastle-on-T3me.
North of England Steam Shipowners* Association, King Street,
Quayside, Newcastle-on-Tyne.
Obkrrhkinische Versicherungs-Gesklls( hakt, Mannheim.
• Orknuorkf« Alfred, Springfield, Illinois, U.S.A.
( ^3 )
Palmer, Henry W., Wtlkei Barre, PeDiisjlvanuL
Papprnhkim, Dr. Jur. Max, Wiustraaae 39, Kiel.
Parker, Le Roy, 846, EUkott Squ«re. fiuflalo, U.S.A.
tPASSY, F., President of the Society of Economists, 8, Rue Labordere,
Nenilly, near Paris.
Pbabody, Hon. Judge Charlcs A., a, Wall Street, New York.
Pears, £. A., Secretary to the Australian and New Zealand Underwriter*'
Association, a^, Comhill, London*
PxBORGH, £. VAN, Member of the Commonal Council, Antwerp.
PiCHAjA, Don Gomzalo Cbdron db la, Loon, ai, Madrid.
Prnton, £., I, Mortimer Sueet, CaTendiih Square, London.
PuiixiMORK, Hon. Sir Walter G. F., B^irt., D.C.L., Judge of the High
Court of Justice, London.
Philumore, G. G., B.C.L., M.A., l. Mitre Court BuikUngs, Temple,
London.
PiXRANTONi, Comm. A., Professor, Senator of the Kingdom of Italy, Via
Magenta 5, Rome.
Platt, Charles, President of the Insurance Company of North America,
t^i^ Walnut Street, PhiUulelphia.
PooLE, Sir Jamas, Liverpool.
Pratt, Hodgson, 40, Outer Temple, London.
P&KDOHL, Senator Dr. MAX, Hamburg.
Private Assurandeurer, De, HoUnans Kanal, 16, Copenhagen.
'* Protectok'* Mutual Assurance Co., Arendal, Norway.
PtTTNAM, Harrington, 45, William Suect, New York.
Raalte, Dr. £. £. van. Advocate, 4, Willemsplein, Rotterdam.
fRAiKES, His Honour Judge F. W., Q.C, LL.D., The Leat House, Malton,
Yorkshire.
Rawle, Francis, 328, Chestnut Street, Philadelphia.
Raynolds, £dward V., D.C.L., 67, Tumbull Street, New Haven, Conn*
Reck, F., Bremen.
Rich, Burdett A., Rochester, New York.
RiONDBL, Albert, Captain, 7, Rue de la Pais, La Flechc, France.
Rogers, Henry Wade, LL.D., £vanston, Illinois, U.S.A.
RouN, £oouARD, 109, Avenue Louise, Brussels.
Rose, Giorgs B., Little Rock, Arkansas, U.S.A.
Rossi, Aw. Cav. Vittorio de. Via S. Francesco 39, Leghorn.
RowE, L. S., The College, Philadelphia.
tRuNDELL, T. W., Average Adjuster, 35, Castle Street, Liverpool.
Russell, Talcott Huntington, M.A., New Haven, Conn.
Russian Lloyd Assurance Society, St. Petersburg.
fSALiSBURY, Hon. Stephen, Worcester, Mass.
Sartort, August, Kiel.
tScHERZER, His Excellency Dr. Karl RitteH voN, 80, Corso» Gots,
Austria.
SCHLESISCHE-FEUERVBRSlCHERUNGS-GESELUCHAin, BresUu.
( 24 )
SCHURTZ, Hon. Carl, 54, William Street, New York.
Scott, Lkslis F., 10^ Cook Street, Liverpool.
Scott, Sir John, K.C.M.G., Judge-AdTocate-General*» Office, 7, Victoria
Street, Westminster.
Sknigallia, Leone Adolfo, Piazza della Borea, 14, Naples.
SKWELL, J. T. B., 54, Faubourg St. Honore, Paris.
Seymour, Hon. Morris Woodrui-f, M.A., Bridgeport, Conn., U.S.A.
tSHAND, Right Hon. Lord, P.C., Athenieum Club, London.
Sharp, Hon. George M., Judge of the Supreme Court, Baltimore.
Shipping Federation, ioi, Leadenhall Street, London.
Short, Edward Lyman, 59, Cedar Street, New York.
fSiEBOLD, Baron Alexander von, Leipheim a/D, Schwaben, Bavaria.
SiEVEKiNG, Dr. F., President of the Hanseatic High Court of Appeal,
Hamburg.
Smith, Burton, AtlanU, Georgia, U.S.A.
Smith, Prof. Edwin Burritt, M.L., Chicago.
Smith, Samuel, M.P., 11, Delahay Street, Westminster.
. Snape, Alderman Thomas, The Gables, Croxteth Road, Liverpool.
SoRTBEER, Dr. Hsinrich, Secretary of the Deutscher Handelstag, Neue
Friedrichstrasse, Berlin.
Sparrow, Alexander, Liverpool.
Spiers, Dr. Benjamin Murel, Dtmkerque.
Squire, Andrew, Cleveland, Ohio, U.S.A.
Standard Steamship Owners' Protection and Indemnity Assocta-
TroN, Limited, 9, Fenchurch Avenue, London.
Stearns, Chas., Banningan Building, Providence, U.S.A.
Stern, J. L. db, Advocate, Rotterdam.
Stevens, Hiram S., St. Paul, Minnesota, U.S.A.
Stocquart, Chas. A. Emilb, 55, Rue de la Longue Haie, Brussels.
Stoddard, Rev. Dr. C. A., 156, Fifth Avenue, New York.
Stollmeyer, Conrad F., Port of Spain, Trinidad.
Stokes, James, 49, Cedar Street, New York.
Strauss, Hon. Oscar, 42, Warren Street, New York.
Strong, Rt. Hon. Sir Henry, Chief Justice, 161, Argyle Avenue, Ottawa,
Canada.
Stroud, F., 2, New Court, Lincoln's Inn, London.
Stubbs, Charles, M.A., LL.D., 3, Paper Buildings, Temple, London.
SULZBACH Gebriider, Frankfort-on-the-Main.
SusE, Dr. T., Hamburg.
Takahashi, SAKUYi, Prof., Tokio.
Tbmperley, Henry, King Street, Quayside, Newcastle-on-Tyne.
Thompson, Seymour D., 35 and 37, Nassau Street, New York.
Thornton, Chas. S., Chicago, U.S.A.
ToMKlNS, Dr. F. J., M.A., Temple, London ; and Denver, U.S.A.
, Tompkins, Hamilton B., LL.B., 229, Broadway, New York.
Trabue, Edmund F., Columbia Building, Louisville, Kentucky.
Trueblood, Dr. B. F., 3, Somerset Street, Bo«ton, Mass., U.S.A.
( as )
JCKER, Henry St. George, Lexington, VirginU, U.S. A/
YLER, Prof. Morris F., Yale University, New Haven, Conn.
Ulrich, Rud., Intemationaler Transport- Vertichcmngs-Verband, Reich*
stags- Ufer 12, Berlin.
United Kingdom Mutual Steamship Assurance Association,
9, Gt. St. Helen's, London.
Valery, Jules, Professeur )k la facolt^ de droit i TUniversite, Montpcllier.
Vallance, C. B., Liverpool.
VcRBiN Hamburger Assecuradeure, Hamburg.
Versin Hamburger Rheder, Hamburg.
ViCKERS, Wm. W., Toronto.
Villiers, Rt. Hon. Sir J. H. DE, K.C.M.G., Chief Justice, Cape Town«
Walker, William A., 13, William Street, New York.
Walton, Cliffpord S., 344, D. Street, Washington.
Walton, Joseph, Q.C, i. Garden Court, Temple, London.
tWARBURG, S. E., Con^iul-General, Stockholm.
Ward, H. G., 160, Broadway, New York.
Webster, Wm. King, 41, Kidbrook Park Road, Blackheath.
Werotie, R. Schmitz, 100, Redclifie Garden*, South Kensington, London.
West op England Steam Shipowners* Protection and Indemnity
Association, 50, Lime Street, London.
Wxtuore, Edmund, 34, Pine Street, New York.
Wheeler, Hon. Everitt P., 21, State Street, New York.
White, John Bill, a. Paper Buildings, Temple, London.
Whitblock, G., Baltimore, U.S.A.
tWijK, Olof, President of the Second Chamber of the Swedish Parliament,
Gothenburg.
WiLMBR, Skihwith, Baltimore, U.S.A.
Wilson, Prof. J. Dove, LL.D., Aberdeen.
Wobrmann, Adolfh, 33-27, Gr. Reichenstrasse, Hamburg.
WooLSBY, Prof. Theoix>re S., New Haven, Conn«
Woolworth, Hon. J. M., First National Bank Building, Omaha, Nebraska.
WUPPESAHL, C, Bremen.
( 26 )
OFFICERS OF THE ROUEN CONFERENCE.
Hon. Simeon £. Baldwin, LL.D., Associate Judge of Supreme
Court of Errors, Connecticut, U.S.A.
l/niUdStaUs: Hon. ROBBET D. BSNBDICT, LL.D., New York.
Great Britain: The Hon. Sir John Bigham, P"r?l''^„f*';nSl!l^
The Hon. Sir Walter Phillimoee. ^^"f f ^"^^^
' I England.
France: Monsieur Octave Marais, Ancien Bfttonnier de Tordre des Avocau
de Rouen.
ya^n: Professor Shxjnt Takahashi, LL.D., Professor of Law at the
Imperial Naval Staff College, Tokio, Japan.
Secretaries.
J. G. Alexander, LL.B., Tunhridge Wells.
G. G. Phillimore, B.C.L., M.A., London.
( 27 )
List of Members and others present at the Conferentf.
Adler, Dr. Adolf, Vienna.
Alexander, J« G., Tunbridge WelU.
Ancier, Captn. T.V.S., London.
AUBIN, Mons. A., Rouen.
AUTRAN, Dr. F. C, BiarseiUes.
Baldwin, Hon. Simeon E., New Haven, Conn.
Barclay, Thos., Esq., Paris.
Bell, £. S. Moberly, Esq, London.
Benedict, Hon. R. D., LL.D., New York.
BiGHAM, Hon. Mr. Justice, London.
Brainerd, Cephas, Esq.« New York.
Caill, Lieutenant C, Rouen.
Carjl, Ralph, Esq., Newcastle-on-Tyne.
Carver, Eugene P., Boston, U.S. A.
Carver, T. G., Esq., Q.C., London.
Cassano, Prince, Pkris.
Cox, E. W. Sinclair, Esq., Londoo.
Darby, Dr. W. Evans, London.
Dent, Mr. Aldermui, Newcastle-on-Tyne.
Deshayes, Mons. Ernest, Rouen.
Deshayes, Mons. Henry, Rouen.
DuPARC, Mons. P., Ronen.
Faroult, Mons. A., Roacn.
FouRi, Mons. A., Rouen.
Frere, Mons. H., Rouen.
Fromageot, Dr. Henri, Paris.
Gouges, Mons. £., Rouen.
GouGis, Mons., Rouen.
GovARE, Dr. Paul, Paris.
G0ERNET, Mons. M., Rouen.
GuXRNBT, Mons. P., Rouen.
Harrison, Hon. Lyndx, New Haven, Conn.
Hyde, Chas. C, Esq., Chicago.
IsRAftLS, Dr. H. Louis, Paris.
Jeanne, Dr. Auguste, Rouen.
Jones, Stephen R., Esq., Boston, U.S.A.
KiRLiN, J. Parker, Esq., New York.
Lespierre, Mons., Rouen.
LiNGELBACH, W. EZRA, Esq., Philadelphia.
Louvet, Mons. Leon, Rouen.
Malandrin, Mons. R., Rouen.
Marsh, C. A., Esq., New Jersey.
MiiXbRi Thos. R., Esq., London.
( 28 )
Mow AT, R. A., Esq., formerly a judge of H.B.M.'s Court for Japan.
Obry, Mons. T., Rouen.
Phillimore, Hon. Mr. Justice, London.
Phillimore, G. G., Esq., London.
PiTOT, Mons. A., Rouen.
Rose, Mons. E., Havre.
Scott, Mr. Alexander, London.
SCORPIELD, E. S., Esq., Newcastle-on-Tyne.
Seymour, Hon. M. W., Bridgeport, Conn.
Short, Edward L., Esq., New York.
Stearns, Chas., Esq., Providence, R.L, U.S.A.
Stocquart, Dr. Emile, Brussels.
Stoddard, Rev. Dr. Chas. A., New York.
Stokes, J., Esq., New York.
Stroud, F., Esq., London.
Stroud, H., Esq., Cheltenham.
Takahashi, Professor SakuyA, Tokio.
Tkmperley, H., Esq., Newcastle-on-Tyne.
Valery, Mons. Jules, Montpellier.
Verneaux, Mons. Ren^, Rouen.
Waddington, Mons. Richard, Rouen.
Whitelock, George, Esq., Baltimore.
Windsor, E. W., Esq., Rouen.
Expressions of regret for non-attendance were received from
the following among otlier gentlemen : —
Alverstone, Lord, Lord Chief Justice of England.
Bouchbr-Cadart, Mons., President k la Cour d'Appel, Paris.
Bruce, Hon. Mr. Justice, London.
Chamber of Commerce, Leipzic.
Clunet, Mons. Edouard, Paris.
CORSI, Marquis A., Pisa.
Dumas, Dr. Jaques, Rethel.
Franck, Mons. Louis, Antwerp.
HiNDENBURG, Dr. A., Copenhagen.
Institute of London Underwriters.
Lambermont, Baron, Brussels.
SiEBOLD, Baron von, Bavaria.
SiEVKKiNG, Dr. F., Hamburg.
Snape, Mr. Alderman, Liverpool.
Walton, Joseph, Esq., Q.C., London.
The International Law Association.
NINETEENTH CONFERENCE.
ROUEN, 1900.
PROCEEDINGS.
TUESDAY, a 1ST AUGUST.
The Members of the Conference assembled at 10 a«m. in
the Palais des Consuls, Rouen, under the Presidency of
M. MASTI£R, Prefect of the Department of the Seine
Inf(^rieure, who delivered the following address of welcome : —
Messieurs,
Au nom du gouvemement de la R^publique je suis
heureux d'adresser un salut de cordiale bienvenue aux Membres
congressistes de TAssociation de Droit International.
Les progrbs de la science, les progr^s des temps, ont perfec-
tionn^ Toutillage maritime, ont multipli^ les relations entxe les
peuples et fait surgir tout un monde de probl^mes particuli^re-
ment d^icats et complexes, pour la plupart inconnus de nos
devanceurs et dont la solution s'impose.
Cette solution, telle est, Messieurs, votre noble tftche.
Elle a pour but de prdvenir les conflits ; elle s'inspire d'un
esprit de sagesse, d'un ddsir de pacification, qui ne peuvent que
trouver la plus grande faveur dans ce pays de France si sincere-
ment ^pris de justice.
Vous venez. Messieurs, spontan^ment mettre au service de la
justice et de I'^quit^ les ressources de vos profondes Editions.
Yous savez en effet que si les id^es intellecluelles de votre
association sont les plus g^n^reuses et les plus dlev^es, il n'est
( 30 )
pas moins n^cessaire d'apporter dans la pratique toute la clart^
et toute la precision du detail technique pour obtenir que des
nations qui ne parlent pas la mdme langue tiennent au moins le
m^roe langage k Teffet de dissiper tous Equivoques. La haute
valeur des hommes r^unis dans cette enceinte est le seul garant
des r^sultats qui seront obtenus.
}'ajoute que les reprdsentants des diverses nations ici convi^s
en apprenant k se connattre apprennent en m^me temps k
s*estimer, et je ne doute pas que les plus cordiales sympathies ne
cessent de rdgner entre les reprdsentants de toutes les nations.
Je me reprocherais de retarder plus longtemps vos travaux,
et j'ai le grand honneur de declarer ouverte la session du
Congrfes de Droit international
M. Waddington, Senator of the Department of the Seine
Infdrieure, and President of the Rouen Chamber of Commerce,
next spoke as follows : —
Messieurs,
Je suis trbs heureux, au nom de la Chambre de Commerce,
de souhaiter la bienvenue anx membres de TAssociation de
Droit international.
Je suis heureux et tier d'installer, et de mettre k la disposition
du Congrbs, cette salle du vieux palais des Consuls, dont les
murs retentissent de 150 ann^es de discussions commerciales et
maritimes.
Quand nous avons appris que le Congr^s avait choisi pour le
lieu de ses assises notre vieille citE normande, cela n'a pas
6x6 pour nous d^plaire.
D'abord Ic sentiment d*amour propre local, et nous ne serions
pas humains si nous ne nous d^larions pas tr^s flatt^s, en notre
qualite de Rouennais, de vous voir ddserter les attractions de la
capitale pour le sEjour d'une ville de province.
En second lieu, si la renomm^e de nos Eglises, de nos monu-
ments, de nos rues pittorcsques et de nos vteilles matsons du
moyen ftge est solidemcnt fondle sur les tratHtions de plusieurs
( 31 )
Slides, i1 n'en est pas de m^me de noire port, que les travaux
d'am^oration de la basse-Seine ont complMement transform^
depais 35 ans. Les humbles caboteurs d'autrefois ont fait
(dace aux vapeurs de gros tonnage. Vous pouvez, Messieurs, les
voir d'ici k nos quais et dans nos bassins.
De tous les points du roonde ils nous apportent les bois, les
p^troles, les vins, etc
Eh bien ! je suis convaincu que mon ami le Maire de Rouen
et moi nous avons un sentiment d'orgueil trbs legitime; nous
avoas M enchant^s de cette occasion de printer la bienvenue
aux sommit^ du Droit international.
Nous nous fflicitions, raes collogues et moi, de pouvoir nous
associer en profanes, il est Trai, k ToeuTre admirable que vous
avez entreprise.
Au cours de cette annde de guerres, de menaces et de haines
que rironie du sort fait succdder imm^diatement au langage de
paix et de bonne volont^ du Congrbs de la Haye, vous avez le
noble courage de ne pas perdre I'espoir pour I'avenir. Mieux
encore, reprenant le travail interrompu, reprenant les fils que
tant d'^p^es hors du fourreau semblaient trancher pour longtemps,
vous cherchez ^ perfectionner, h, rendre pratiques, k appliquer les
excellents principes qui ^taient proclam^s Tann^ demifcre, lors
de la conference de la Haye.
}e vous en prie, portex un message de paix et nous serous
fiers k notre tour de le voir ajouter k Tun des chapitres de Pceuvre
que vous allez accomplir.
Je vous souhaite encore une fois la bienvenue et je fids des
voeux pour rbeureose issue du 19' Congr^s de votre Association.
An address by M. Cartier, Mayor of Rouen, next followed :
Messieurs,
II ne me seiait ni peimis ni possible d'ajouter quelque
chose d'intdressant k ce qui vient d'etre dit et si bien dit, mais il
me sera accorde, je pense, de m'associer aux considerations
^levees, aux paroles eloquentes par lesquelles M. le Pr^fet et
( 3» )
M. le S^nateur Waddington, President de la Chambre de Com-
merce de Rouen, ont souhait^ la bienvenue k Toeuvre du Congrbs.
J'ai aussi et surtout le droit, qu'il m'est agr^able d'exercer, de
dire aux Congressistes que je leur souhaite la bienvenue de la
part de la Ville de Rouen.
Le Conseil Municipal et la population tout entibre sont fiers de
voir tant d'hommes appartenant aux nations les plus civilisto
du globe r^unis dans notre vieille cii^^ pour y travailler k la paix
du monde.
Nous vous en exprimons notre profonde reconnaissance et
nous formons des souhaits pour que vos importants travaux
ambnent le succbs qu'ils mdritent, et nous ferons tout notre
possible pour que le sdjour de la Ville de Rouen vous soit
agrdable.
In reply, the Hon. Simeon E. Baldwin, President of the
Association, spoke as follows :
M. le Prdfet du D^partement de la Seine-Infdrieure ; M. le
S^nateur Waddington, President de la Chambre de Com-
merce de Rouen ; M. le Maire ; Mesdames ; Messieurs : —
Vous voudrez bien, j'en suis stir, excuser la manibre imparfaite
dans laquelle je m'exprime en votre langue — ^une langue si douce
et si dl^gante dans la bouche du Fran^ais, mais si difficile pour
un Stranger.
Nous ne sommes pas insensibles au bonheur special qui nous
r^unit aujourd'hui sous le pavilion de cette nation qui autrefois
donna refuge et audience au fondateur de la science qui fait
Tobjet de nos efforts et de nos Etudes.
Ici, dans ce beau pays de France, Grotius, un fugitif proscrit
de sa propre patrie, d^posait aux pieds de Louis XIII toutes les
richesses d'un esprit fort, et d'une ^e ^clairde. Et il ap-
partenait k la presse de Paris, il y a environ trois sibcles, de les
rendre Th^ritage perpdtuel du genre humain.
Aussi Tancienne cit^ qui est sous votre administration,
M. le Maire, est un rendezvous historique des nations. C*est ici
( 33 )
que le Noid de rEurope, k m^lant au Sud, iroprimft sur la terre
le nocn de sod origine.
D'id les Normands transport^rent en Angletem leun inadtu-
tions et kur loi. D'id fit voile un due normaiKl pour deveoir un
roi anglais.
Dans la x^publique soeur d'ota viennent quelques una des
memlnes de cette Association, le sang des Nonnands et des
Teutons fut Th^ritage commun de ses premiers habitants, et
aujourdliui plusieurs de leur descendants pourraient retracer leur
origine anx citoyens de Rouen et de Normandie.
N*est-ce pas aussi une circonstance heureuse qo'ime Associa-
tion k, laquelle appartiennent |riusieurs Chambres de Commerce de
I'Europe, re^oive ici Thospitalit^ g^n^reuse d*une Chambre de
Commerce si importante que celle dont M. le S^nateur Waddington
est le prudent distingu^ ? Nous avons vu k Paris, k la grande
Exposition, le remarquable ^talage par lequel cette Chambre a
cherch^ k illustrer la grandeur de Rouen. Rouen est gnmd,
parcequ'il a— et toujours a eu— des associations, des institutions,
des ^oles, par lesquelles ses marchands, ses fabricants, dirig^
par ses hommes d'afi&ires, ses hommes d'Etat, sont devenus les
architectes de sa gloire. C'est un des noble desseins de T^oole
Sup^rieure de Commerce, qui a ici son sifege, d'^ever ''des
agents consulaires, capables de repr^enter dignement la France
dans les relations du commerce international."
Le commerce international est la nourrice du droit international
Partout oh ce commerce se transporte, le droit international
ne tarde pas k le suivre, parce que le commerce, c'est la civilisation ;
et la voix commune de la civilisation, c'est le droit international.
L' Association a 6t6 accuellie g^ndreusement aujourd'hui par les
repr^sentants de la R^publique, de la ville, et de ses commergants.
Sous rinspiration de leur gracieuse bienvenue, elle va maintenant
commencer ses travaux. Et, comme nous nous r^nissons pour
la premiere fois en France, c'est dans I'espoir de partidper k
cette ardeur et k cet esprit de d^vouement qui ont toujours
marqu^ le peuple fran^ais, et de contribuer ainsi au sentiment
croissant de solidarity de tous les peuples.
D
< 34 )
Comme M. le President de la R^publique Frangaise Ta si
doquemment dit, samedi, k Paris, c'est k ce sentiment de
solidarity que nous sommes redevables dijk de grandes choses, et
c'est celui qui rendra k Tavenir plus fragile le triomphe de la
force, et reconnattra mieux la souverainetd du droit, en imposant
le rfeglement amiable des conflits intemationaux, et raffermisse-
ment de la paix — la paix, toujours plus glorieuse que la plus
glorieuse des guerres.
At the request of the Prefect, the Hon. Simeon £. Baldwin
took the Chair.
The Hon. Mr. Justice Phillimore, as Chairman of the
Executive Council, then proposed the following as officers of the
Conference :
President: —
The Hon. Simeon E. Baldwin, D.CL.,- Associate Judge
of the Supreme Court of Errors, Connecticut, United
States j President of the Association.
Vice-Presidents : —
Frana—M. Octave Marais, ancien bAtonnier de Tordre
des avocats de Rouen.
United States— The Hon. Robert D. Benedict, LL.D.,
New York City, N.Y.
Great Britain — ^The Hon. Sir John Bioham ; the Hon.
Sir Walter Phillimore, D.C.L., Baronet; both
Judges of the High Court of Justice, England
/of an — Professor S. Takahashi, LL.D., Professor of Law
in the Imperial Naval Staff College at Tokio.
Secretaries: —
J. G. Alexander, LL.B., Tunbridge Wells.
G. G. Phillimore, B.C.L., M.A., London.
The motion was unanimously adopted.
( 35 )
Mr. G. G. Philumore read the Minutes of the last day of
the Buffalo Conference, which were approved and signed by the
President
The President then delivered his Inaugural Address as
follows : —
The Part taken by Courts of Justice in the Develop-
ment OF International Law.
The science which it is the purpose of this Association to
cultivate and advance, as I have just said in expressing our
appreciation of the kind words of welcome with which we
have been received at Rouen, first took shape and form in the
brilliant capital of the great people among whom we meet to-day.
An Englishman, long afterwards, gave it its name,^ but Paris was
its birthplace, for there, in 1635, Grotius, hospitably received by
Louis XIII., when flying from his own country as a condemned
criminal, dedicated to him and published to the world his Dejure
Belli ac Pads.
Oxford had, indeed, in the preceding generation had among her
professors one who had written systematically on the law of war ;
and there were countrymen of Gentilis whose works issued from
the Italian press treated of the same subject, and from a point of
▼iew not wholly different' We all know that there are adum-
brations preceding every new discovery, which, it is afterwards
seen, pointed to it in some uncertain or half-certain way. The
real discoverer nevertheless is he who gives fonn and precision
to what before was vague and ill-defined.^
The foundations upon which Grotius built are familiar to us
alL The jus gentium of the Romans he treated as largely the
expression of natural law,^ and nattural law as the rightful rule of
conduct to govern the relations of associated bodies of men,
grouped into separate States^ no less than those of their mdividual
* Jeremy Benthaoi, in 17S9.
* Holland, 'Studies in International Law,' I., II.
» Grotius, D* Jure BelH ac Paeis, prolegomena, 30, 36, 38.
* De Jure Belli ac FaciSt I. I, xhr. ; II. 8, i., xxvi ; 18, i. ; 20, xL
D 2
( 36 )
members to each other. ^ He was thus able to appeal to an
established system of jurisprudence, venerable from its antiquity,
ready at hand and at least approximately adequate in principle,
when studied in the light of divine revelation, to regulate
international intercourse under the conditions of modem
civilisation.' The protection of natural law might indeed as to
certain points be renounced, and thus a rule be established by the
JUS gentium totally inconsistent with the Jus naturale, as where by
engaging in war one impliedly consents to submit himself to the
will of the conqueror, and so from a freeman may become a slave.
But, as a whole, what all men in all nations have recognised as
proper standards of human conduct, Grotius insisted had a
natural claim to be accepted, so far as they might be applicable,
as ayW, not merely inter homines^ but inter populos.
It was fortunate that the civil law could supply a term so
elastic, and perhaps ambiguous, as that oijus gentium. The most
critical of modem scholars cannot deny that the Romans often
referred to it as a mle in matters of international obligation,'
thouj^ it is no less certain that they viewed it as of narrow
application in this respect, and that it is the moderns rather than
the ancients that have given it a philosophical basis in moral and
religious principles of action.^ Nor, at its best, as Grotius fully
recognised, was it more than a scanty and fragmentary collection.
If the new system was to extend far, if it was to achieve great
things, if it was to elevate the jus humanum by its insistence on
theyW divinum^ if it was to give certainty to speculative doctrine,
sanction to public opinion, it must draw from other sources and
appeal to better authority than Greek philosophy or Roman
precedent.
* De Jurt Bdli dc Pact's, prolegomena, 17.
' Ibid., prolegomena, 53. Cf. the Maria, i Rob. Adm. Rep. 340.
» Livy, II., iv. ; XXL, x. ; Sallust, Be/L Jugurtk., XXXV. The Jut
pMiatm Romenum may fiurly be said to rest largely on the/M gimtmrn^ as to
the rights of war, the obligation of treaties, title to the goods of a foreigner,
ikut jus postliminii, and the personal inviolability of ambassadors. See Dig.
XLIX. 15, de Captnns ct de Postliminio^ 5, § 2, 19 ; ^* Postliminium est jus
, . . inter nos ac libtras populos regesgue^ moribus, UgHms constitutum."
* Montesquieu, £sprit des JMs^ I. 3.
( 37 )
I venture to think that the service rendered in this direction
from time to time by the courts of justice has not always been
estimated at its full weight
The way had been prepared by the natural and almost
necessary course of Admiralty jurisdiction in civil causes. There
is one, and but one, part of the surface of the earth which belongs
equally to all men. The ocean can know no master but the
storm. The necessities of commerce have therefore driven the
civilised world to accept a iaw nurchant^ framed for its protection
by those most interested in its pursuit The customs of trade,
whether it be trade by land or sea, soon become the rule by
which mercantile adventures are to be governed, if the subject of
judicial inquiry.
Ocean navigation was in its infancy when Grotius wrote. l*hat
the sea was open and free to all comers was by no means
universally admitted. A quarter of a century had hardly elapsed
smce the invention of Davis's quadrant The application of
logarithms to nautical calculations, and the introduction of middle-
latitude sailing, were still more recent
Voyages soon became longer, cargoes richer, noaritime casual-
ties more frequent Suits between merchants of different
nationalities began to crowd the courts. What law should be
applied ? That of the <utar^ or of the reus ; of the forum^ or of
the world ?
The courts of every country have ordinarily treated the general
maritime law, so far as it could be considered as settled, and was
not contrary to the expressed will of the sovereign by whom they
were commissioned, as being by usage a part of the common or
unwritteir law to which they had a right to resort.^ If the parties
before them are all of nations acknowledging a different (and the
same) law on the point in question, that law may be applied ; but
in any other case they must take the general maritime law recog-
nised in the forum whose aid has been invoked.' Of this law,
* The Lottawanna, 31 Wallace's Reports, 558, 573 ; Uvirpool Steam Co,
▼. Phiidx Ins. Co.^ 1 39 United States Reports, 444.
* The Scotland^ 105 United SUtes Reports, 34, 39 ; the Belgenland^
114 United SUtes Reports, 355, 369.
( 38 )
the Corpus Juris Civilis, so far as it went, was from the first
universally considered an authentic repository.^
But the Court of Admiralty, as an instance court, was also
called upon to punish offences committed upon the sea, and,
when given the functions of a prize court, to pass upon the
broadest questions of public right It was natural and almost
inevitable for each sovereign to instruct his judges that in these
matters also* unless specially directed to the contrary, they were
to proceed in a similar way, looking to the general law of the sea,
and to the rules of public law affecting maritime events, which
might be commonly regarded as of international obligation.^
In England an unfortunate conflict of opinion between the
common law and the Admiralty judges, as to the limits of the
jurisdiction of their courts, retarded for a time the orderly
development of the principles of international law applicable to
maritime events. Criminal prosecutions, even, for offences
committed upon the high seas were anciently tried in the King's
Bench.^ For many centuries, however, they have been the
acknowledged subject of Admiralty jurisdiction, and the great judges
who have succeeded to the functions of the Admiralty have, by
many important decisions, helped to solidify and systematise the
public law of the sea.
Perhaps the most widely known of these judgments has not
met with the widest acceptance. In the case of the Franconia
it was held that a sovereign may invest his Courts with the right
to punish such acts as he may declare to be criminal offences,
when committed on the high seas, if within the three-mile limit,
thous;h by a foreigner against a foreigner and upon a foreign
ship.^ The legislative department of Great Britain, in recognising
^ See Gierke, Praxis Suprema Curia AdmircUitatis^ 98.
* The ancient form of the commission to the English Admiralty Judges to
act as a Prize Court, directed them to proceed " according to the course of
the Admiralty, and the law of nations." Douglas' Rep. *592, note. The
same language was adopted in the first ordinance passed upon this subject by
the United States. 7 Journals of Congress, 68 (1781). Cf. 6 ibid. 21 (1780).
' Lord Hale's Treatise on Admiralty Jurisdiction, in the Hargrave MSS.,
quoted in Commonwmlth v. Maeloon^ loi Massachusetts Reports, I, 12.
• Ri^ina \, Ktyn^ Law Reports 1876, 2 Exchequer Division, 63.
( 39 )
this doctrine, and providing for its enforcement, however, thought
it necessary to forbid its application in any case without the
consent of one of the Secretaries of State.^ With this limiution
it is safe to say that the claim of jurisdiction asserted in the Keyn
case will not be pursued by criminal proceedings against a
foreigner, under circumstances which could give a Just cause of
complaint to the country of his allegiance.'
It is the good fortune of the branch of jurisprudence which it
is our task to extend, that it grows in war no less than in peace,
perhaps we might say, more than in peace. The rule that inter
arma silent leges has but slight application to Courts whose
office it is to administer the law of nations respecting captures
on the sea.
The weighty words uttered a htmdred years ago by Sir William
Scott in the case of the Maria have often been criticised, but I
believe they express a true conception of judicial duly : —
'* I trust that it has not escaped my anxious recollection for one moment*
vfaat it is that the duty of my station calls for from me ; — ^namely, to consider
myself as stationed here, not to deliver occasional and shifting opinions to
senre present purposes of particular national interest, but to administer with
indifference that justice which the law of nations holds out without distinction
to independent States, some happening to be neutral and some to be
belligerent. The seat of jndidal authority is, indeed, locally here, in the
belligerent country, according to the known law and practice of nations ; but
the law itself has no locality. It is the duty of the person who sits here to
determine this question exactly as he would determine the same question if
sitting at Stockholm ; — to assert no pretensions on the part of Great Britain
which he would not aUow to Sweden in the same circumstances, and to impose
no duties on Sweden, as a neutral country, which he would not admit to
belong to Great Britain in the same character. If, therefore, I mistake the
law in this matter, I mistake that which I consider, and which I mean
should be considered, as the uniTersal law upon the question." '
It has been said that the King of England sees in the two
Houses of Parliament his equals : in the law his superior. Inter-
national lawy when administered in the lofty spirit of Lord Stowell,
^ Act of 40 ft 41 Vict c. 73.
- * See the rules as to the wur tirritoriali adopted by the Institute of Int. Law
iai894.
' The Maria^ 1 C. Robinson's Reports, 340.
( 40 )
may make a still bolder claim. It is superior not to any king,
but to any nation.^
A nation may indeed disown and reject its rules, but only, if
this be done avowedly and persistently, at the cost of becoming
a sort of outlaw in civilised society.
It must be frankly owned, however, that the Court which seeks
to declare and administer a universal law must sometimes make
it for itself. It finds the authorities in conflict, and it chooses
between them. It looks to civilised society in its largest sense
for its guide; but simply because common acceptance and
general usage are the main source of authority for rules of
decision in Admiralty and Prize Courts, their judges have been,
from the first, compelled often to take the part of legislators in
settling the form of maritime law.
Nor was this true of those having Admiralty jurisdiction alone.
In whatever Court title was set up under a foreign decree in rem^
rendered in Admiralty, it became necessary to ask whether that
decree was so framed and rendered as to work a transfer, which
by the comity of nations was entitled to respect
Was a ship sold as prize, by order of the Courts of a neutral,
or of a country into which she had not been brought, and after-
wards found in a port of a different Power by her original owner ?
He had the right to demand that the validity of her condemna-
tion should be re-examined in the new forum, so &r as to
determine whether it had been obtained in accordance with the
laws of nations.'
So, on the other hand, if a ship captured in war were sold by
the captor without resort to a foreign Court, she could be reclaimed
by her original owner before any of the ordinary tribunals having
cognizance of questions of tide, because they had the right to
pronounce that under the laws of nations no effectual transfer
had been made.*
* The Ost, Sec 9 Moore, Privy CoancU Cases, 141 ; note in Cobbett's
* Cases on International Law,' 220«
* Jiose ▼. Ifimeiy, 4 C ranch** Reports, 241.
* Assievedo v. Cambridge^ ID Modern Reports, 79; Undo v. Jiodney^
Douglas' Reports, 591.
( 41 )
In constitutional monarchies the decision given in such a case
was governed by those laws, not because that rule might have
been prescribed by Royal Commission, but rather on the ground
that no other could have been.^ The king could not of himself
create or vary the law of the land, nor the law of the sea. That
required the concurrence of the legislative power. He could
only choose those who were to administer the existing law.
Hence the judges were driven to assert that the law of nations
was part of the unwritten, common law of the land, and (to
justify this position) to rest it in great part on an unchanging
and unchangeable jus tuUurale^ which in tiurn it was fior them to
declare.'
The same ground has been taken by the courts sitting under
republican governments.'
In absolute monarchies, the judges being the mouthpieces of
the sovereign and their sentences subject to his overruling
power, their function was more restrained.
Indeed, in all countries where there is no constitutional pro-
vision to the contrary, an appeal has been given in prize cases to
the executive power, and their ultimate disposition been treated
as largely a question of State policy.^ Such an appeal, however,
cannot in £umess be decided upon any other rules than those
prescribed for the Court of First Instance, which have rarely been
other than such as are to be found in the law of nations. When-
ever any other course has been taken, the voice of public opinion
sooner or later has condemned it ; nor has it in its nature the
force of a strictiy judicial precedent
In England, the position that the law of nations is a part of
the municipal law was first, so far as is disclosed by the reports of
' Key T. Pearse^ Doaglas' ReporU, 584, 586; Letter of the Duke of New-
castle to the Pnusian Legation in 1753, given in Chitty, ' Law of Nations,'
Appendix, 309.
' Bkckstone's ' Commentaries on the Laws of England,' IV. 67 ; L 43 ;
Triqud v. Baih^ 3 Burrow's Reports, 1480, 481.
* HenfieM's Case, Wharton's SUte Trials, 53, 61, 6a.
* Azoni, ' Maritime Law of Europe,' IL chap. it. Art 4 ; Rapport de M.
Bulmerinercq : Commission des Prises Maritimcs, Gand, 1880, 437, 449.
( 42 )
decided cases, asserted from the bench by Lord Talbot, in 1736.*
He found no warrant for it in the earlier institutional writers of
his country, although many of them were civilians. One of the
most authoritative, St Germain, the author of * Doctor and
Student,' written early in the sixteenth century, in enumerating
its various kinds and sources, has nothing to say of the law of
nations, though the jus gentium^ in its Roman acceptation, is
mentioned as inferior in authority to the statutes of the realm.'
Corvell, in his * Interpreter,' published a century later, is equally
silent, and even treats the law merchant as *' a privilege or special
law differing from the common law." *
In 1709* it is first referred to* in an Act of Parliament, as (on
certain points) of force in England. Four years afterwards, how-
ever, when Sir Matthew Hale wrote his * History of the Common
Law,' he ignored its existence ; and so did Wood in his Insti-
tutes, published in 1722, which repeats the statements made in
* Doctor and Student' • Sir William Blackstone, in his com-
mentaries, which appeared some forty years later,* is the first
English text-writer to assert that the law of nations is part of the
law of the land ; and no doubt took this position on account of
observations made in a case ' in which he was himself of counsel,
by Lord Mansfield, a few months before his work appeared from
the press. Possibly, also, he was influenced by the assertion of
the Roman lawyers that the jus gentium was part of the jus
dviU^ for it is probable that Blackstone attributed to the jus gen-
Hum much that more properly belonged to ^t jus fcciaU^ and so
gave it too wide an international application.^®
* See Triquet v. Sath^ 3 Burrow's Reports, 1480.
' Dialogue i, chap, iv., xi., xxi.
» Tit. Law Merchant,
* HoUand, ' Studies in International Law,' 193.
* 7 Anne, chap. 12, § x., iv. 67.
• Pp. 4, 10.
' 1765.
• Triquet v. Bath, 3 Burrow's Reports, 14S0.
• Cicero, de OffUHs, II., chap. xvii. ; Dig., I., !, dejuttitia et jfurt, 5, 6,
9 ; Gains, I. i.
*• Sec Maine's * Ancient Law,' chap. iii.
( 43 )
The principle thus declared was received without question in
America, and remained unshaken by the Revolution. It was
fiilly applied, from the first, in the Courts of the different SUtes,^
and in 1789 was put for the United Sutes upon the solid ground
of constitutional recognition. It is one of the powers expressly
confided to Congress to define and punish offences against the
law of nations.' What these offences are it is left to that law to
decide. The office of Congress is not to declare, but simply to
define and presc^'be the sanction.'
The Courts of the United States and also those of Mexico have
a peculiarly wide jurisdiction over questions of international law,
from the fact that treaties are in those countries made by their
Constitution part of the supreme law of the land, and to be
enforced as such by the judges of all Courts, State and national.*
This compels them to deal with many controversies regarded
elsewhere as cognizable solely by the executive power. Whoever
in these countries may suffer in person and property, by the
infraction of a treaty, has precisely the same right to appeal for
redress to any proper Court, as if his suit rested upon an Act of
Congress. It is obvious that this throws the construction of
treaties into the hands of the Courts.*
In a spirit of comity they always seek to follow that, if any,
which may have been already adopted by the executive and
legislative departments,' but not if it be manifestly contrary to
what seems to them the true intent of the instrument^
The meaning of a treaty almost always depends on the sense
in which it employs terms of usage in international law. These
terms therefore are constantly coming up for definition before
American judges, and so far as they do the work intelligently,
they add to the future precision of the vocabulary of the science.
* Rttpublica t. De Lmgehampt^ I Dtllas* Reports, III, 114.
« Art. I., sec K.
' l/nUed Siatet ^. Atjona^ lao United Sutes Reports, 488.
* CoDstimtioo of the Uuited States, Art. VI. ; Coostitution of Mexico, Art.
126.
* Uniitd States v. Rauscker, 119 United States Reports, 407, 419.
* F&ster V. NeUson, 2 Peters* Reports, 253, 308.
' Castro V. De Uriarte, 16 Federal Reporter, 93.
( 44 )
The treaty of peace between the United States and Spain,
negotiated in 1899,^ opened with the declaration that during the
occupation of Cuba by the United States they would ** assume
and dischaige the obligations that may by international law result
from the fact of its occupation, for the protection of life and
property/' What are these obligations? The Court that applies
the treaty must determine them; and it must do so as a pure
question of legal construction.
Diplomatists, in framing the engagements of nations, often act
hastily, at a distance from books of reference, and under an
overwhelming pressure of circumstances. It is fortunate that
their work is left to be interpreted in the deliberate course of
judicial procedure. Nor even if the negotiation of a treaty
admits of delay and careful thought, is it often that no occasion
of doubt as to its meaning can arise.
Is it not true that rules laid down in the most solemn dedacar
tions and conventions are commonly expressed with less precision
and certainty than those asserted by courts of justice ?
It is, for instance, one of the maxims of the Declaration of
Paris, that *' Blockades, in order to be binding, must be effective,
that is to say, maintained by a force sufficient really to prevent
access to the coast of the enemy.'' But has any Power ever
seriously contended that these words mean what they literally
declare ? The question is not whether access is really prevented,
but whether it is made really dangerous. Hence it has recently
been adjudged that a single cruiser with modem guns of long
range may be sufficient to blockade a port, notwithstanding the
former practice of stationing a squadron of two or more.'
Another maxim of this Declaration is that neutral goods, with
the exception of contraband of war, are not liable to capture
under the enemy's flag^ But what if they are in fact captured,
and in the course of capture injured or destroyed ? The failure
to provide for this event soon occasioned a suit in the Prize
Courts of this country, by the neutral owners of goods seized on a
> 30 United States Statutes at Lai^, 1755.
' The 0/inde Rodrigues, 174 United Sutes ReporU, 510.
( 45 )
German ship during the Franco-Pnusiaii war, and destroyed with
the vessel as an act of war ; the decision being that restitution
was only demandable as respects the goods existing im speeU^ or
their proceeds) if sold.^
The will of the late Duke of Brunswick called upon the French
CourtSi a few years since, to expound certain clauses in the treaty
of 1869 with Switxerland, which were found obscure. It was
provided in one artide that in ''contestations en matikre
mobiliire et personelle** between subjects of the two Powers the
rule of odor forum ni sequHur should prevail ; u another, that
"en mati^ r^lle ou immobili^re/' suits should be brought where
tiie property lay. Was the term amUstatioH persomile to be
understood as meaning those only purely personal, or did it cover
suits to determine a succession to immovables, depending on the
validity of a will ? Despite the exceptions of the city of Geneva,
as universal legatee, the jurisdiction of this country, where the
duke left large landed possessions, was maintained ; as justified
both by the trae construction of the treaty itself, and by force of
the statute law of France (Code of Civil Procedure, Art 59).'
The latter of these grounds brings into view one general
restraint upon the authority of the judge, which is of the first
importance, when he is called upon to pass upon treaty
obligations.
Wherever a treaty is not a law, it is inferior to the law, that is
to the municipal law of the contracting powers.
It has sometimes been asserted that in those countries, such for
instance as France and Germany, in which treaties or treaties of a
certain kind must be ratified by the legblative authority, such a
ratification gives them the force of law. This position seems to
me hardly tenable. The legislature in such a proceeding acts as
a Council of State, Vather than as a representative of the people
or of other cor^tituendes, and really discharges an executive
fimction.
> CaHo^ Le Droit Int., 1 3033.
' See the fall statement and discuMon of this case in the Revue criHpu de
ZJgisUuiom et de Jurisprmdemce^ XXIV., Sa.
( 46 )
Such I understmd to be the view of the Courts of this
country.^
A treaty, then, if it be no more than a contract, must yield to
any municipal law with which it is in conflict It must be
disregarded or set aside by the authority to which it may be
confided to determine what the law is, and to apply it in
controverted cases. Sir Robert Phillimore, as a Judge of the
English Admiralty Court, therefore did not hesitate to rule that
no British treaty could relieve foreigners from the operation of
laws which by the British Constitution were to affect all alike. ^
Even in the United States and Mexico, it may be assumed that
a treaty contrary to the Constitution would be disregarded by the
Courts, and it is certain that a statute passed after a treaty would
be superior to it*
Nor are Courts confined to a comparison of treaties with the
municipal law. They must often look to find their true meaning
to the law of the world, that law which the contracting powers
designed to afiirm, to extend, or to restrict
A wide view must be taken upon any question of construction
arising upon a treaty between nations. Such papers must be
read in the light of the piuposes they were designed to promote.
They are commonly negotiated to provide for what the general
law of nations does not sufficiently secure. This general law
must therefore be inspected and ascertained, in order to determine
for what, outside of it, the contracting powers have mutually
stipulated.
Is it a question of extradition? The Court may find it
necessary to inquire whether there could be extradition without a
treaty.*
^ See the case of the La Construction^ Limited^ cited and commented apon
in Barclay's ' Companies in France,' 20, 85.
• The ParUment Belge^ Law Reports, 4 Probate Division, 129, 154 (re-
versed, but not on this point). S. C. 5 P. D. 197, 204. Cf. Hall, 'Treatise
on International Law,' 199; Ktg, v« Keyn^ Law Reports, 2 Exchequer
Division, 160.
» See Professor Despagnet's paper in the Revue de Droit Int. Public t 1895,
IL, 184.
* United States v. Rauscher^ 1 19 United States Reports, 407.
( 47 )
Is it a question of alien ownership in real estatCi claimed under
a treaty which overrides some local statute ? The conformity of
this statute to the law of nations must be exammed.^
Is the treaty one of cession ? What is ceded may depend on
what international law gave power to cede.'
Nor does the power of the American Court stop here* It
considers an award of arbitrators appointed under a treaty as
carrying an obligation equal to that imposed by the treaty itself^
and equally capable of legal enforcement by judicial process. If
the stipulation be that the award is to be accepted as final, then
the Courts may uphold it as such, even if the executive depart-
ment should object'
It need not be observed what a strength this doctrine has lent,
m America, to the proceedings of the tribunal to be organised
under the Conventions of the Hague. Should the United States
become a party to any controversy before it, its decision will have
for them and in their Courts the force of an Act of Congress, and,
80 &r as it settles private rights, suitors can invoke its aid under
every sanction which law can supply.
Hubner, Sainte Croix, Galliani, and Azuni contended for a
single permanent Prize Court for the world, to sit in some free
city, with judges drawn fix>m every nation in Europe. Their
ideal seems ready to be crowned by even a broader realisation,
and for one country at least a mode of enforcing judgment seems
to exist
I have thus far spoken more particularly of judicial declaration
and enforcement of international law as affecting rights of
property. It has received hardly less important accessions from
the decisions of Courts in cases involving questions of personal
liberty.
Can one State refuse to permit citizens of another to take up
their residence within its limits, or after admitting them, can it
expel them against their will ?
' HauifuUin ▼. LynAam, loo United States Reports, 483, 484.
' Mkkely. CMiUd States^ 9 Pelen* Reports, 711, 733.
• The La Nin/a^ 75 Federal Reporter, 513.
( 4« )
The extension of commercial intercourse in recent years,
between the eastern and the western nations, and the general
acknowledgment of the inherent right of voluntary expatriation,
have given new point to this inquiry. Publicists have differed in
their views as to the controlling principles of law : governments
have differed in theirs as to the policy which it might be expedient
to pursue. The Courts have been appealed to in actions against
executive officers for preventing a landing; or upon writs of
habeas carpus in favour of aliens held in legal custody for purposes
of deportation ; and they have affirmed the right of the legislative
or political departments to exclude whom they will ; considering
such action contrary to no rule of international law, whether it
may or may not be regarded as an mfringement of international
comity.*
And here let me say that the comity of nations differs, it seems
to me, fundamentally from the law of nations. It has little value
for the individual ; none as an absolute test of individual right.
It is something as to which each nation, speaking through its
Courts, is a law unto itself.^
" What is termed the comity of nations," it has been said by
one of the American Courts of last resort, " is the formal expression
and ultimate result of that mutual respect accorded throughout
the civilised world by the representatives of each sovereign Power
to those of every other, in considering the effects of their official
acts. Its source is a sentiment of reciprocal regard, founded on
identity of position and similarity of institutions." *
I shall not detain you by remarking on what Courts, m all
countries alike, have done towards shaping private intematiosial
law. That lies wholly in their peculiar field, and it is under their
hands that it has gradually gained form and precision.
It is not to be regretted that there is less of unanimity and
> Mus^rwe v. Chun Tteong Toy^ L. R. Appeal Cases, 1891, 372 ; Fomg^
Tuejingv, United Stata^ 149 United States Reports, 698.
• Oakeyy, Bemtutty if Howard's United Sutes Reports, 33, 34; Stcmrify
Trust Co. ▼. Dodd^ Mead <&• C«., 173 United SUtes Reports, 624, 629, 63$.
* Fisher^ Brown 4^ Co. v. Fielding^ 67 Connecticut Reports, 91, to8.
( 49 )
certainty in judicial decision, in relation to public than in relation
to private international law. The scheme of judicial intervention
would else be unworkable.
No government can conduct its foreign affairs with confidence
and dignity, if any important points are involved as to which the
executive and the judiciary are not at one. Hence the Courts
have been careful to keep themselves informed of such trans-
actions at the Foreign Office as may affect the subjects of pendmg
litigation ; in so doing they have made free use of the doctrine of
judicial notice.
The judicial tribunals of every country not only knpw what all
men know ; but when the dealings of their Government with
foreign nations are such as to give or withdraw a private right,
may inquire for themselves what these dealings were, and take
their information, not in the shape of evidence from the parties,
but from public documents and even special communications made
particulariy to them by the proper officer.^ Public law may thus
be, in a measure, shaped by public policy. But, in the long run,
it will be by the public policy of no one nation.
There is a serious objection to judge-made law in genera),
which has much less of force when that law is of an international
description. Statutes are easily and often repealed, llie compo-
sition of the legislature changes frequently. The best laws, it has
been said, are those which abrogate some former law, and remit
things to their natural course and level But the Court which
makes a precedent is apt to cling to it, and Courts have a
certain permanence of corporate identity and existence. The
precedent was established not as a rule of policy, but of right
To decline to follow it is a confession of error. Such a con-
fession comes more readily when it b called for by the public
opinion, not of one country as to a question of domestic concern,
but of all countries as to a matter of concern to the world at large.
As soon as it is evident that any doctrine which has been judi-
cially asserted as to a point of that nature fails to receive a general
' Tayhr ▼. Barclay^ 2 Simons' Reports, 213, 220; Jona v. United Sia/a,
13 United States Reports, ao2, 216.
( so )
€»nsensus of approval, the Court which put it forward will seldom
decline to qualify or retract the position. An easy way is thus
open for retracing any ill-considered step.
The Admiralty Court in England, in the seventeenth century,
issued executions against the body on foreign judgments, at the
request of the foreign tribunal, and it was upheld by the Courts of
Common Law as warranted by that and by the law of nations.
Here not only was the determination of the foreign Court held
conclusive, but a proper foundation for the inamediate issue of
domestic process.^ Such was not the opinion of the world. The
doctrine w^ weighed by publicists and found wanting. The
English Courts soon saw that they had gone too hx, and in the
next century the rule which they had thus sought to import into
private international law was quietly dropped, by the same
authority by which it had been introduced.^
Incidents like these show, no doubt, that judgments of Prize
Courts may sometimes come from men not well-informed as to
the principles with which they have been caUed on to deal, nor
can we forget that judicial tribunals can never be absolutely unin-
fluenced by the pressure of surrounding public sentiment It is
true also that the judges of no country can be, or perhaps should
be, wholly free from a desire to support the policy of the executive
department.
To such causes, an application of the doctrine of " the con-
tinuous voyage" by the Courts of the United States during the
Civil War,* which has found &vour in England, has been attri-
buted by a writer of authority.^ Perhaps, however, this particular
criticism is sufficiently answered by the similar rulings which have
been made by the Prize Courts of France and Italy,^ and the
*■ MoUoy, de Jun maritim9 et navaU^ 476.
* Smelttir ▼. Fimsmr^ 20 How. St. Tr., 468.
* The Berwwda^ 3 WaUace*s Repoits, 514.
* Hall, ' Intemadoiud Law/ 695, § 247, and note.
* See the cases of the Vrom ffomtrina^ and the Voehnjk^ dted in Profeanr
T. S. Woolsey's paper on Nential RighU and Contraband of War, in ' The
Outlook,' LXIV. 1(17, and fully reported by Signor Fedoizi in the Hevue tU
Droit Int, XXIX. 55 ; also Professor Westlake*s ' Introduction to Takahashi's
Cases on International Law,' p. xvii.
( s« )
declaration put forth hy the Institute of Internationtl Law in
1896.
Bat there is a more serious element of weakness in prize deci-
sions, which has detracted much from their force as compared
with those rendered hy other tribunals upon subjects less inti-
mately connected with the incidents of war.^ It lies in the fact
that their work is done mainly Jiap'artte bfUo, and often in the
absence of the party most vitally concerned. This is the owner
of the libelled property, who not infrequently is an alien enemy.
If such be his national character, it has been the general practice
of Prize Courts to refuse him a hearing.'
An important step towards a change in this mode of procedure
was made by the Supreme Court of the United States in 187 a
They held that, under an Act of Congress providing for the con-
fiscation of property of those holding office under the so-called
Confederate States, by proceedings in rem conforming as nearly
as might be to those in Admiralty, the owner, although an
enemy in arms, was entitled to appear by attorney and make
defence. That his title might be assailed in Court, it was said,
necessarily implied that he might defend it there.'
It must be owned that this decision paid no great deference to
English precedents m prize cases, and relied on some in the
Common Law and Equity Courts which hardly support it^
Is there not, however, much to recommend its general accept-
ance? Such a step would be one in the same direction with
many that have been taken in recent times in furtherance of the
^ See the remarks of Lortmer, * Institutes of the Law of Nations,' 11. 997.
' Thtfakm, 6 Robinson's ReporU, 199 (1805); Halkck, 'International
Law,' II. chap. ^, | 27 ; Wbeaton, ' Intctnational Law/ Dana's edition,
480-4S3, n.
* McVmgk ▼. United StaUs, 11 Wallace's Reports, 259, 267 ; Untied Statu
▼. 1756 Skates^ 5 Blatcfaford's Reports, 231, 237.
* Albretekt ▼. Smsmann^ 2 Vesey and Beaaies' Reports, 326. An opinion
of Judge Story has sometimes been cited a<i d^ding that an alien enemy
cannot sustain a claim in a Prize Court. His mling was simply that as the
^^usproianSin prise causes rests on the claimant, no title could be set up
tnder a contract of sale made pending the war with an enemy, and therefore
void. The Emulatu^ i Gallison's Reports fiSiJ), 563, 571.
£ 2
( 5« )
humanities of civilisation. The employment of counsel -«- of
those who are themselves officers of the Court, charged with
the function of defending even the guiltiest offender against the
justice and the sovereignty of the State — is a kind of intercourse
between subjects of belligerent Powers which, if it has been
technically forbidden by a maxim of international law framed
with a different intent, can hardly imperil any true national
interest, and is demanded by a rule, not technical but funda-
mental, audi alteram partem.
The power of the Courts to declare, and so, from time to time,
to expand, if not to reduce, the law of nations, has rarely been
abused To exercise it wisely and effectually requires a learning,
a knowledge of history, a familiarity with current events, a
strength of reasoning, a freedom from local prepossessions and
partialities, which few possess. Hence most judges, in matters
of international law, have been content to repeat the language
of others. They have either followed the greatest of their prede-
cessors on the Bench, or relied upon unofficial statements and
opinions of jurists of established reputation.
No method could have been better adapted to the orderly and
systematic development of this branch of law* It removed any
occasion for hasty legislation* It proceeded by analogy to new
applications of fundamental principles, but it proceeded with a
caution necessarily involved in taking steps in any one country
which, unless followed in others, must result in confusion and
error.^ It elevated the law of nations above the Jus civile^ the
law peculiar to any particular nation. It led English judges to
assert that, at least in prize cases, it was not to be varied even by
the omnipotence of Parliament, to the prejudice of rights gained
under it by the humblest subject of a foreign Power.* It has
frequently led to a judicial construction of executive orders,
affecting the subjects of other Governments, which narrowed
their field of operation and practically nullified them, because it
1 See the Fladoyen^ l Rob. Adm. Reports, 135 ; the Maria, t^., 340.
' HoUand's 'Studies in International Law,' 124; HeathJUld v. Ckiltam^
4 Burrow's Reports, 2016.
( 53 )
was assumed by the Court that they could not have been btended
to violate what it held to be international obligations.
An instructive instance of this judicial enlargement of inter-
national law is fomished by a recent decision of the Supreme
Court of the United States.
Early in the century it had been declared from that Bench, by
Chief Justice Marshall, that the modem usage of nations, as
affecting the law of nations, constituted of itself no rule for the
guidance of Courts. It could not act directly upon the thing
itself by its own force, but only as it might be adopted by the
sovereign power. As regarded the case in hand, the sovereign
power of the United States was to be regarded as vested in
Congress, and their course would be determined — and properly —
by questions of policy. The controversy before the Court was
over enemy's goods seized and condemned without any legislative
authority. It was contended, in behalf of the Government, that
the Executive had had it seized and appropriated rightfully under
the laws of war, as established by modem usage. The Court
dismissed the libel, because it could " pursue only the law as it is
written," and there was no written law to authorise such confiscation.
The Chief Justice treated the ancient and original law of
nations as the ultimate source of authority. By that, he declared,
the mere existence of war did not authorise the confiscation by
judicial proceedings of an enem/s goods found on land, and
modem usage could not, of itself, give the Courts of belligerent
Powers a wider authority.^
It is to be observed in regard to the opinion thus delivered,
that the course of reasoning was probably influenced by a tradi-
tional sense of the power of the American Congress over foreign
relations. It had such power under the original organisation of
the Government of the United States, and exercised it in adjudi-
cating upon prize cases.^
^ Brown v, UniUd States^ 8 Cranch*s Reports, no. See the Jokanma
Ewulie^ 29 English Law and Equity Reports, 562, in which Dr. Lnshington,
Judge of the High Coart of Admiralty, expressed a different opinion.
' * Journals of Congress,* V. 86-90; Ptnkaliow ▼. Doaui^ 3 Dallas
Reports, 46, 82, 85.
( 54 )
During the present year a somewhat similar question came up
ia the same Court.
In the war between the United States and Spain, a Spanish
fishing-smack, taken while making for a blockaded port, was
condemned as prize by a Court of Admiralty in Florida. By
the primitive usages of nations such vessels were as liable to
capture and confiscation as any others which might fly an
enemy's flag. Sentiments of humanity produced what Merlin
described as a sort of tacit convention between all nations of
£urope for their exemption.^ Lord Stowell, in the English
Court of Admiralty, in a case arising in 1798, regarded this as
*' a rule of comity only, and not of legal decision." The Supreme
Court of the United States, on appeal in the case to which I now
allude, held that what might have been a matter of comity nl the
close of the last century had, by the close of this, ripened into
a settled rule of international law ; that this was shown by the
works of modem publicists, which were to the Courts trustworthy
evidence of what the law is ; and that Prize Courts were bound to
take judicial notice of it, as a part of the law of the United
States, and give it fiiU efiect, in the absence of any treaty or
other public Act of their own Government to the contrary.'
If judicial extensions of international law, maile in such ways
as this, be compared with those which have been attempted from
time to time by the political departments of government, I think
it will be found that they have proved more durable. They
command public confidence more fiiUy. They have less the
taint of selfishness : the colour of occasion.
Attempts have often been made by neutral Powers to formulate
and proclaim during a war, as maxims of international law, such
rules as would best promote the interests of their own subjects.
The Armed Neutrality of 1780 may be taken as an imposing
instance of this. The Russian declaration of that year, limiting
articles of contraband to munitions of war and sulphur, received
^ ' Repertoire de Jurisprudence/ J^ist Afariiimi^ III. i, 3.
» The Pafuek Haban^t October Term, 1899, 175 United States Reports,
677.
( 55 )
tiie adhesion of ten Powers within the next two jeus.^ But wu
it ever seriously taken as anything but a tempoiaiy expedient to
subsenre particular ends under particular circumstances?
Nor can international law be said to have derived any even
and acknowledged growth from the awards of special arbitral
tribunals. Take that which is periiaps of the first importance*
made under the Treaty of Washington of 187a The principle
asserted by the majority of the arbitrators, that it is a violation of
international duty for a neutral not to prevent her subjects from
fitting out and despatching to a belligerent port, as a matter of
mercantile profit, vessels suitable for men-of-war, has certainly
fiuled to conunand universal approval'
The growing solidarity of the worid, bound together as it is
by ocean cables across every sea, which outstrip the hours,
and now accepting in the main similar principles of social
government, demands more certainty in the definition of inter-
national obligations.
The doings of the Hague Conference are a response to diis
sentiment, the more impressive because that Confisrenoe was
called by a Power that till in recent times seemed to have little
in her institutions that was common to the rest of Europe. The
proposition of such a Court as that which is to have its seat at
the Hague would have seemed visionary, had not the fi&mily of
nations taken on a new character, as such, during the nineteenth
century. It had come to recognise certain standards of inter-
national morality. It had come, particularly, to respect the force
of judicial decision pronounced by the tribunals of any one of
this great family, but affecting the interests of the subjects
of another. It had come even to respect it, although the
interests affected might be those of a foreign Power itselC
In one conspicuous instance such a determination of sovereign
ri^ts bad been asked for by one nation at the hands of another
—that is, of the Courts of another.
I refer, of course, to what was done by Great Britain a few
^ Hall, « Interoatioiua Law,' 673, 1 338.
' Cobbetl's ' Cases on Interoational Law,' 258, 288.
( 56 )
years since, in relation to the controversy between her and the
United States, as to their territorial jurisdiction over Behring's
Sea. She contended that this extended only three miles from
the shore of Alaska. The President of the United States main-
tained that it ran to the middle of Behringfs Straits, and from the
meridian of 172° to that of 193° west longitude. Pending a
diplomatic controversy over this question between the two Powers,
an American revenue cruiser seized a Canadian vessel engaged
in seal-fishing nearly sixty miles from the Alaskan coast She was
libelled by the United Sutes in the Alaskan Court of Admiralty,
under the statute against fishing for seals in waters subject to
their jurisdiction, and a decree of condemnation was passed.
Here was what might have been even a casus beUi. The
seizure was wrongful if, as Great Britain asserted, the United
States had no jurisdiction beyond the three-mile line. But the
spirit of modem civilisation makes for peace. It puts right above
might. It is more confident that a controversy will be justly
settled by a judicial tnal than by a military contest
The Attorney-General of Canada filed a ''suggestion" in the
Supreme Court of the United States that a writ of prohibition
should issue against the enforcement of the decree of confisca-
tion, stating that he did so *' with the knowledge and approval of
the Imperial Government of Great Britain, and that he wotdd be
represented by counsel employed by its Minister resident at
Washington." ^ This action was taken m aid of an application
couched in similar terms, which was presented by the owner of
the vessel. The Attorney-General and Solicitor-General of
the United States appeared in defence. The Court issued a
preliminary rule to show cause ; but finally refused the writ on
the technical ground that the record did not show that the seizure
was made outside of the three-mile line. It was observed in the
opinion ' that a prohibition could not issue upon the request of
the British Government unless the owner of the vessel had made
out a case of an infringement of his rights of ownership, as the
> In re Cooper^ 138 United States Rt^orts, 404, 41a.
• Jn re Cooper^ 143 United States Reports, 472, 503, 513.
( 57 )
Court had no jurisdiction to pass on abstract political questions*
Had, however, the real question of boundary been presented on
the record and made the subject of adjudicationi it cannot be
doubted that both Governments would have acquiesced in the
result — that of Great Britain because it had invited the judgment,
and that of the United States because it had been pronounced
by the highest judicial authority in the land, acting under a
Constitution which it was its prerogative to interpret and apply.
This case is the more remarkable because no countries have
been more sedulous to maintain the immunity of foreign sover-
eigns from suit than England and the United States. It was
early held by the American Courts to protect a foreign ship of
war from a libel founded on the jus postUmitm^ however irregular
the proceeding under which it might have been taken from the
original owner.^ This was also, notwithstanding the opinion of
Bynkershoek to the contrary, soon afterwards declared by the
French Courts to belong equally to anything that might be due
from domestic debtors, if attached by proceedings in the nature
of a foreign attachment^ Recently it has served to protect the
Sultan of Johore from an action in England for a breach of
promise of maxiiage, which the plaintiff asserted that he had
made to her while living incogfdto in that country under the luune
of Albert Baker.'
On one allied point the law cannot yet be said to be definitely
setded. This is the limit of the right of defence when the
foreign sovereign is the actor. May not only an answer, but a
counter-claim be put in, and thus that same full justice be done
to both parties to the controversy, to attain which is the object
and rule of the ordinary action ? ^
* The Exchanges, JifcFaddon, ^ Cranch's Rqf>orts, Il6.
' Jommal du Palais, XIX. 22. S. P. Dt Haber ▼. Quan tfj^riugai, LJ.
vol. zx. 488.
' Mighdl ▼. Sultan of Johore, Law Reports 1894, i Q. B. DiTision, 149.
Cf. CalTo, DroU Jni,, §§. 1469, 1476 ; and the paper by Professor Audinet on
the case of the soccession to the Duke of Brunswick in the Revue de DroU Int.
^^, 189s. n. 385.
* South African RepiMie ▼. La Compagnie Franco- Beige, &'c,. Law
Reports^ 1897, 2 Chancery Division, 487 ; 1898, I Chancery Division, 190.
( 58 )
It was said not many years ago, by a distinguished juiisty that
''there is no place for the refinements of Courts in the rough
jurisprudence of nations." ^
For the refinements of form, of technicality, of procedure — No I
But for all those higher refinements, which in a large way soften
and ennoble the administration of human justice, there is
increasing room, and always must be. There can be no substan-
tial difference between the manner in which a Court deals with
questions of international and of mtmicipal law. International
law, in every civilised State, is municipal law. As such, it has in
each its sanction. The judgment that may be rendered would
be no judgment, could it not be enforced as between the parties
to the litigation, or as against the res which is the subject of
controversy.
Between the executive authorities of Treaty Powers their
engagements may rest simply on public faith. But so £u: as
their process runs, to the extent that Courts administer the law of
nations, it has its sanction ; and every adjudication of this nature
tends to confirm a public sentiment by which it is regarded as of
binding authority between men and governments alike.
No Court indeed can extend its hand to compel a foreign
nation to obey its judgments ; but its moral force in declaring
what is right and just — what is established by common consent
of mankind as the true rule of international conduct — this is far
weightier than anything attaching to the utterances of kings or
parliaments. A Court is an arbiter before which contending
parties state their claims upon an equal footing — erected for this
end, because all men agree that thus can justice be best secured.
What speaks for justice speaks with a voice which no nation,
however powerful, can afford to disregard. It is, as one of our
associates has finely said, *^ Texpression souveraine du principe du
bien coordonn^ avec les exigences de Futility individuelle ou
collective." *
* Hall, ' Treatise on International Law/ 2nd ed, 310, note.
' Corst, De ^Existmct itunc SancHoH jPuiUve dans U DroU Intematwnal^
23, Pisa, 1900.
( 59 )
The Power which should go befoie an internatioiial tribunal,
and then declme to respect the decree which it had invoked,
based upon the jurisprudence of the world, would forfeit the good
oinnion of mankmd.
And hardly less endurable is now the state of that nation which
has avowedly violated any rule of international law which is
generally held to have been established by judicial decision* It
goes against the moral sense of civilisation.
Its punishment is none the less severe because it is simply the
natural, unwritten consequence of its acts. Nations live long ;
they may suffer long. Men may escape remorse for earth, at
least, by suicide; after earth it may be by pardon. But no
divine mercy awaits the nation that has proved itself unworthy,
and its perpetuity of existence keeps it for ever at the bar of
public opinion. History is the judge, and it is the history of the
world of which the greatest Power forms so small a part The
record of conviction is not hastily made up, but, once registered,
it can never be cflBiced.
The Haoue Convention.
Mr. Alexander then presented the following Report in
English and French ^*«
Report of the Special Committee appointed at the
Buffalo Conference, on the 3XST August, 1899, **to
examine in detail the provisions of the Hague
Conventions, and to prepare a report thereon for
the next Conference."
This Committee, after its appointment at the last Conference,
held a meeting at Bufi^ o, when it was agreed that the American
members of the Committee should in the first instance meet and
prepare reports on the three Conventions adopted by the Hague
Peace Congress of 1899, which should subsequently be submitted
to a meeting of the full Committee in Europe.
The American members accordingly met at New York on the
( 6o )
8th November, 1899, and, after discussion, referred it to three
sub*Committees to prepare separate reports on the three Con-
ventions. These sub-reports*were presented to and approved by
a subsequent meeting of the American members held at New
York on the i8th June, 1900. They were then forwarded to
England, printed, and issued to all the European members of the
Committee, with the request that these would submit any sugges-
tions for their amendment to a meeting of the whole Committee
to be held in London/on the 27th July.
At this meeting of the Committee, two English and two
American members were present, written opinions favouring the
general conclusions of the American sub-Committees were
received from the Chairman and another English member of the
Committee, and no adverse criticism was received from any other
member. The following report, embodying the conclusions of
the American members, was accordingly adopted for presentation
to the Executive Council, with a view to its being forwarded to
the Rouen Conference.
On behalf of the Committee,
Walter G. F. Phillimgre,
CAairman,
Joseph G. Alexander,
Secretafy.
Report on the Hague Conventions.
Introductory.
The efforts of the last forty years to check the evils of war have
been exerted in two directions ; first, to provide a substitute for
the settlement of an international controversy by arms ; second,
presupposing the occasional occurrence of war, to mitigate its
conditions, both as affecting persons and property. The media-
tion protocol of the Powers at Paris in 1856, and numerous
attempts to further the cause of international arbitration are
( 6i )
examples of the fonner. In the latter category are the Declara-
tioD of Paris, 1856 ; the St Petersburg Declaration of 1868; the
Geneva Convention of 1864; and the Brussels Conference
of 1874.
At the Hague Conference of 1899, the efforts of the delegates
have found expression in these same two directions. They have
drawn up one convention to aid international arbitration ; they
framed another to codify the laws and usages of land warfare ; and
they extended the principles of the Geneva Convention to naval
waz£ure in a third. They also discussed expansive bullets, ex-
plosives thrown from balloons, and shells filled with noxious
gases, disapproving of all these practices, but not in treaty form.
X. — The Intematwnal Arbitration Convention.
The main feature of this convention is the creation of a per-
manent court, consisting of a large number of Judges, before
which any two powers, by mutual agreement, shall be entitled to
bring any controversy between them for final decision, the hearing
to be had before such of these Judges as they may select, who
shall be a quorum of the court for the purposes of the cause.
The merits of this scheme may be best determined after first
considering what it does not provide.
It does not authorise what is sometimes, though inaccurately,
described as Compulsory Arbitration. Arbitration can only exist
by the voluntary act of both parties.
It does not authorise the submission of a controversy to arbi*
tiators chosen primarily and originally for the purpose. There is
a standmg panel of triers, chosen in advance of the controversy,
from which the particular Judges who are to hear the parties must
be taken.
It is not confined to arbitration, but provides a plan for resort
to or offer of the friendly mediation of a third power, and also for
the determination of controverted questions of fact, without refer-
ence to any resulting duty.
It does not define the controversies which may be the subjects
( 62^ )
either of mediation, inquiry, or arbitration. Since there is no
element of compulsion in either proceeding, such a definition was
unnecessary.
It does not provide any sanction for the judgment of the arbi-
tral tribunal, other than such as may be supplied by the municipal
and administrative law of each of the powers concerned. It was
deemed sufficient to rely on their good faith and on the inherent
force of the public opinion of the world.
It does not require that the judgment should be unanimous.
Here, as in most affairs of government, the voice of the majority
is to be the rule.
We deem it inadvisable, at this time, for the Association to
undertake the minute examination of the details of this compre-
hensive scheme. These can best be judged by the results, and
any criticism may safely be deferred until it be thus demonstrated
whether any changes of procedure are necessary. We see ao
occasion for any change of principle. The convention seems to
us one of the best works of the nineteenth century, the closing
year of which has now been fitly marked by its ratification by
several of the leading powers.
We recommend that the High Signatory Powers which have
severally ratified the Convention, and which have not already
made appointments pursuant to it, be respectfiilly requested to
proceed, at the earliest practicable moment, to the appointment
of the judges of the Court of Arbitration provided for by the
Convention, and to constitute the Permanent Administrative
Council for establishing and organising the International Bureau
mentioned in the 28th Article of the Convention.
2. — T^ CofivmHon concerning the Laws and Customs of War
on Land.
Uniformity and certainty in the rules to govern land warfare
are of the greatest importance. At present they do not exist If
a code of such rules could be drawn and adopted by all civilised
powers, even if it were defective, it would mark such a step
( 63 ;
forward in the rdations of States as to carry an oyerwhelming
presamption in its favour. This association can better afford to
applaud the fact of codification than to criticise the details of
codification. With this preface, we examine the proposed rules
by topics, first asking, however, their origin.
The rules which govern the conduct of belligerents are based
upon usage. Treaties between individual States have varied and
supplemented this usage. Nations are always prone to emphasize
those rules which make for their supposed military advantage.
The influence of modem civilization upon war has been a
hnmanizing one.
Thus we find that the set of rules which will govern the forces
of any given State in the field is in the main identical with that of
its enemy, since both are equally based upon usage, but will vary
from it in certain points as its interests dictate, and will claim,
probably with reason, to be permeated by the spirit of humanity.
No code common to all States exists, but each State will draw
one up for itsel£ This was done by the United States in 1863,
to govern its armies in the field, the author being Francis Lieber,
and upon this set of rules the modem attempts at codification
have been largely based. One such attempt was made at Brussels
in 1874, by a conference invited by the Emperor of Russia.
Another of a purely scientific character was drawn by a committee
of the Institute of International Law, and recommended at the
Oxford meeting in 1880, though adopted by not a single State.
And finally we have the Code of the Hague Conference, based
upon all the others. In what particulars it differs fix>m them, and
how its provisions should be regarded, these are the questions to
be considered.
The Hague Code begins with a recital of the intentions of its
fiamers to respond to the demands of civilization, to soften the
evils of war and, while laying down roles to govern warfare,
nevertheless to emphasize the fact that cases not specifically
legiskted upon must be treated in conformity with the roles of
humanity and the demands of the public conscience, not handed
over to the arbitrary will of a commander.
( 64 )
The first topic taken up relates to the character of troops, who
may and may not be lawful belligerents. At the Brussels Con-
ference, it will be remembered, the battle over the legality of
the levU en masse was fought out in behalf of the smaller military
powers, which were partly dependent upon it for national defence.
The rule then adopted conferred the rights of belligerents upon
*' the population of unoccupied territory, which, at the approach
of the enemy, of its own accord takes arms to oppose the invading
troops without having time to organize in conformity with the
conditions previously laid down, if it respects the laws and usages
of war." This last condition was not specifically attached, in the
Oxford Code, to the conditions of a Uvke^ but made general, to
apply to all forces.
The Hague Code does not copy the Oxford in this respect, but
follows the Brussels Code to the letter. The legal land forces of
the State, tlierefore, include the regular standing army, with its
reserves ; the militia ; the national guard and volunteer bodies
which are under responsible chiefs, wear a uniform or badge which
can be seen at a distance and carry arms openly; lastly, the
Uvte en masse^ if conforming to the rules of war.
The second topic of the Hague Code relates to the treatment
of prisoners of war* Like both the Brussels and the Oxford Codes,
it emphasizes the modem theory that prisoners belong not to
individual captors but to the captor government, while the non*
military propert}* of prisoners remains in their possession. The
rules relating to maintenance, penalties, paroles and labour, are
the same as in the Brussels Code. Both alike class war corres-
pondents and purveyors, properly certified, as prisoners of war, if
captured and if their detention is thought advisable. The Hague
Code contains some entirely new provisions, which are however by
no means revolutionary.
One of these is the creation of '* Bureaux de renseignements "
in belligerent States, and in neutral States too, if hostile troops
take refuge and are interned in their territory, to care for
prisoners, keeping an individual account with each, in all that
concerns him, including hospital and death charges. These
( 6s )
Bureaux are also charged with the custody of all valuables of a
personal nature, found on the battle-field, or in the possession of
deceased prisoners, to return the same to those concerned.
Another new rule grants to prisoners' aid societies, duly formed,
the Polities necessary to their humane labours, subject always to
military and police control. The gifts and aid furnished to
prisoners through these channels are to be free of import or other
tax and to be carried free of charge by post and on the state
railways. Another rule which is new provides for officers the pay
which their position would entitle them to at home, but of course
at the cost of their own government
Prisoners are to enjoy freedom of worship, subject to police
control Their wills are to be received or drawn up ; their death
and burial attested, as would be done for natives. Upon the
return of peace the repatriation of prisoners is to be effected as
quickly as possible.
Nothing in these new provisions can be objected to; the
bureaux appointed under them are an excellent thought; the
whole chapter conforms to the modem theory that prisoners are
held as military necessity, but subject to no conditions of penalty,
or vengeance, either individual or national
The subject of the care of the sick and wounded is dismissed
with a word, being simply placed under the Geneva Convention.
We now come to the important topic of hostilities, of what may
and may not be done in injuring the enemy. Here at the outset
is repeated almost literally the list of prohibitions of the Brussels
Code. For the term " meurtre^' used of treacherous killing, the
phrase " de tuer ou de bksser " is employed, however, which is an
extension of the idea.
The St Petersburg Convention regulating the size of explosives
is not referred to specifically as in both the Brussels and the
Oxford Codes, but its prohibitions, and those of all treaties of its
kind, are to be regarded. " Outre les prohibitions ^tablies par des
conventions sp&iales, il est interdit," etc.
All three Codes use the same language in regard to weapons,
the Hague text being " interdit d'employer des armes, des pro-
r
( 66 )
jectiles ou des matibres propres k causer des maux superflus ; "
the Oxford Code, however, adds the phrase ** ou h aggraver des
blessures." The language of all the Codes is unfortunately in-
definite in this matter, but perhaps left intentionally so at the
Hague, to avoid the controversy over an expansive bullet which
was the subject of a special Declaration, not subscribed to by the
delegates of Great Britain or the United States, These Declara-
tions forbidding expanding bullets, explosives thrown from balloons
(for five years), and projectiles charged with noxious gases, though
coming under this title, perhaps, are not a part of this Convention
and do not belong to this report.
As for bombardment, another mooted question, the rules
adopted at Brussels are closely followed. Only defended places
may be thus attacked ; notice shall be given ; buildings used for
the arts and for charitable and religious purposes shall be
designated and spared unless they are made to serve a military
end ; pillage is forbidden even in case of assault.
Chapter II. of Section II. relates to the definition of spies, and
their treatment when captured. In regard to the first there is
agreement between the Codes, including Lieber's, but the Oxford
rules omit this topic. There must be disguise, there must be the
seeking of information within an enemy's lines, and there must be
the intention to convey such information to the spy's employers.
This excludes soldiers in uniform who penetrate the hostile lines,
and also balloonists, in which, very properly, the Hague Code
corrects the one at Brussels. In regard to penalty the Codes
differ. Lieber prescribes death ; Brussels inflicts the punishment
adopted by the captor army ; the Hague rule only declares that
the spy shall have a fair trial, " ne pourra ^tre puni sans jugement
pr&lable."
Chapter III. relates to flags of truce. The Codes are alike in
their treatment of this topic, save in one minor point, and that
alone is worthy of comment. The Brussels Code allows a
commander to announce that he will receive no flag of truce for
a specified time, but the Hague Code, although not com-
pelling the reception of a flag in each instance, does not
( 67 )
authorise the general prohibition above quoted (chap, v., " De
I'Annistice").
Here the main question relates to what b permitted to the
parties to the truce, in the way of introducing supplies and
erecting or strengthening defences, during the operation.
The Hague Code meets this by making it the subject of special
agreement in each case, copying the rule adopted at Brussels.
The Oxford Code omits this subject Probably no other solution
of the question would be satisfactory.
We now come to the most important topic in the whole range of
warfare, the relations between inhabitants and an occupant army
in invading territory.
The section begins with a definition of occupied territory in
the very words adopted at Brussels. As the kvie en masse is
lawful only in unoccupied territory, while within occupied territory
the same acts would constitute a form of treason punishable by
death, it becomes of vital importance to define the term. The
same difierence as in the kv^ en masse discussion between the
great and small military powers developed itself at Brussels over
this point The former argued that occupation might be con-
stnictive after the original opposition had been once crushed.
Moreover that where no military force was encountered, the mere
passage of troops through a region was equivalent to its occupa-
tion. The other contention was that occupation must be constant,
actual and effective. The language of both Codes shows that
this latter view in a somewhat modified form prevailed, and
fortunately, for it is clear and sound. The language of the Oxford
rule shows a difference, but not an improvement, while its mean-
ing is the same. The Hague Code goes on to state the proper
theory of jurisdictional rights gained by the conqueror over the
population of occupied territory. Inasmuch as the actual power
to enforce authority has passed out of the hands of the legal
sovereign and into those of the occupant, he alone is charged
with the duty of taking such measures as are necessary to re-
establish order, enforcing the existing laws unless circumstances
absolutely forbid.
F 2
{ 68 )
The steady growth of this principle, since Lieber's Code, has
been a gratifying and striking proof of the progress of humanity in
waging war.
Lieber lays down in great detail the application of Martial Law
to occupied territory. Martial Law being "simply military
authority exercised in accordance with the laws and usages of
war." He does say presently that —
"All civil and penal law shall continue to take its usual course in the
enemy's places and territories under Martial Law, unless interrupted or
stopped by order of the occupying military power ; but all the functions of the
hostile government — legislative, executive, and administrative — whether of a
general, provincial, or local character, cease under Martial Law, or continue
only with the sanction, or, if deemed necessary, participation of the occupier
or invader."
But in this is no strong presumption that the conqueror's will is
likely to take shape in the local law, much less a positive rule that
it shall
The Hague Code follows that of Brussels very closely, using
the same words in some cases, in others being a little fuller and
more explicit, certainly not going backward. The retention of
the old officials under the new rkgifne does not seem so clearly
suggested by it as by the Brussels rules, however. Article 50 of
the Hague Code is a new and valuable rule. It declares that no
penalty, pecuniary or otherwise, shall be inflicted upon a district
for offences of individuals within it, unless the responsibility of
the whole therefor can be shown. This would make illegal the
usage of 1870-1, of fining communes if violence were offered
within them to railway trains, supply trains, or small bodies of
soldiers. As at Brussels, both Contributions and Requisitions are
recognised as legitimate. As in the Brussels Code, it is provided
that for payments in kind and for contributions receipts shall be
given.
We could wish that some certain method of securing repayment
for supplies, labour and money furnished to the invader under
these two heads should be devised and prescribed. He may give
receipts, and the inference certainly is that they are an acknow-
ledgment of debt on the part of his government, to be discharged
( 69 )
somehow and some time, by it or by its enemy when the war
costs are being balanced. But what is only a fair inference
should be made a fixed rule. And we venture to suggest that, as
in the case of prisoners and their accounts, a special Commission
might well be provided for by this Code, to be charged with the
duty of redeeming all receipts held by the population of occupied
territory, on the part of the government giving such receipts,
which is the immediate and responsible debtor. If payment can
be secured from the other combatant at the return of peace, this
is a matter quite apart
One section of the Oxford Code (42) contains a valuable sug-
gestion which may be repeated and commended here, that the
people of occupied territory should be told as publicly and widely
as possible, how far occupation extends and what the occupants'
powers are, because of it For when the allegiance of a wide
region to its old sovereign is suddenly suspended, and new obliga-
tions are imposed, with severe penalties for their violation, it is
certainly only fair to publish the localities which come under the
new jurisdiction, and to announce what their obligations are. We
think it regrettable that the Hague Code has not mcorporated this
provision.
The other articles of Section III. offer nothing new, and nothing
to criticise.
The last portion of the Code, Section IV., concerns the neutral
who keeps and feeds troops who may take refuge in his territory
and cares for their wounded. He must prevent their renewing
the campaign, for clearly neutral soil must not be made a source
of danger as well as a place of refuge. The Brussels Rules were
copied at the Hague word for word on this topic, but the Hague
Code adds that sick and wounded of one combatant, sent into
neutral territory by the other combatant, must be prevented by
that neutral from taking part afresh in the war.
In summing up the character of the Hague Code, we can
honestly say that it is enlightened, practical, yet containing
nothing which any civilised combatant could reasonably object
to. The suggestions of changes and the criticisms made are
( 70 )
trifling in comparison with an appreciation of its admirable spirit
and its value as a whole in the progress of humanity exemplified
in warfare.
3. 27i€ Convention extending the Geneva Convention to Maritime
Warfare.
The Convention drawn by the Hague Conference with a view to
extend the principles of the Red Cross Convention to maritime
warfare seems admirably adapted to the end to be attained, and,
so far as can be determined beforehand, likely to work well under
any circumstances which may arise.
The original " Convention for the Amelioration of the Con-
dition of the Wounded in Armies in the Field " was concluded
at Geneva, August 22, 1864, and ratified by the twelve signatory
European Powers on June 22, 1865. This Convention was
afterwards acceded to by nineteen other powers, the United States
giving its accession on March i, 1882.
On October 20, 1868, an additional Convention in ten articles
was concluded at Geneva by fourteen European Powers, "ex-
tending to naval forces the advantages of that Convention."
This was acceded to by the United States in 1882. But ratifica-
tions of the new articles were never exchanged, and hence they
never went into effect.
The Hague Convention is based on these additional articles of
1868. But it goes much beyond them in systematic arrangement
and carefulness of detail. It extends as far as seems possible the
principle of neutrality to military hospital ships and other properly
recognised and suitably designated ships: and boats, with their
equipment and personnel, engaged in the work of rescuing the
wounded and drowning in naval battles.
This Convention is the logical outcome of the Geneva Con-
vention of 1864, which has done so much to mitigate the suffer-
ings of wounded soldiers on the battlefield and in hospitals. It is
strong proof of the steady growth of the spirit of tenderness and
regard for human life in civilised society --a spirit which is
( 71 )
rendering war more and more infrequent, and which, it is to be
hoped, will ultimately find means of preventing it entirely.
How the provisions of this Convention, which is new and un-
tried, will work in practice, remains to be tested by actual
experience. Until such test is made, it seems unnecessary to
make criticisms or suggest changes. It is to be hoped that the
Convention will be ratified as early as may be, that its advantages
may be freely secured in any future naval combats.
Rapport du Comity special, nomm£ k la Conference de
Buffalo le 31 aoOt 1899, pour examiner en detail
les dispositions des conventions de la Have, et
pour preparer un rapport sur le sujet pour la
prochaine Conference.
Ce Comit^, apr^s avoir ^t^ d^sign^ k la demi^re Conference,
s'est r^uni k Buffalo, oh il fut ddcid^ que les membres amdricains
da Comitd se rduniraient s^pardment d'abord et pr^pareraient des
rapports sur les trois conventions adoptees par le Congrbs de la
Paix k la Haye en 1899 ; rapports qui seraient ensuite soumis k
ime reunion pldni^re du Comit^ en Europe.
Les membres amdricains, en consequence, se rdunirent k New
York le 8 novembre 1899, et, apr^s discussion, confi^rent k trois
sous-comit^s le soin de preparer des rapports sdpar^s sur les trots
Conventions. 'Ces rapports s^pards furent prdsent^ et approuv^s
par une reunion post^rieure des membres am^ricains tenue k
New-York le x8 juin 1900. lis furent alors envoyds en Angle-
terre, imprimis et distribuds k tons les membres europ^ens du
Comit^, avec pri^re de faire savoir s*ils avaient des amendements
k printer k une reunion pl^ni^re convoqu^e k Londres pour le
27 juillet
A cette reunion du Comitd, deux membres anglais et deux
am^ricains ^taient presents; le president et un autre membre
anglais du Comit^ envoybrent des opinions dcrites, favorables aux
conclusions gdn^rales des sous-comitds am^ricains, et aucune
opinion contraire ne fut communiquee. Le rapport suivant.
( 72 )
renfermant les conclusions des membres am^ricains, fut en
consequence adopts pour ^tre pr^sentd au Conseil exdcutif en vue
d'etre envoy^ k la Conference de Rouen.
Au nom du Comity :
Walter G. F. Phillimore,
Frhident
Joseph G. Alexander,
Stcrktaire.
Rapport sur les Conventions de la Ha ye.
Introduction.
Les efforts des quarante derniferes ann^es pour enrayer les
maux de la guerre ont ix,i d^ployds dans deux directions:
d'abord substituer Tarbitrage k la guerre pour le r^glement des
conHits intemationaux ; ensuite. en cas de guerre, en adoucir les
conditions aussi bien pour les personnes que pour la propri^t^.
Le protocole de mediation des puissances k Paris en 1856 et
de nombreuses tentatives en faveur de I'arbitrage international
sont des exemples de la premiere catdgorie d^eflforts; dans la
seconde, peuvent ^tre rangdes : la Declaration de Paris 1856 ; la
Declaration de Saint-Pdtersbourg en i868; la Convention de
Genfeve en 1864 et la Conference de Bruxelles en 1874.
La Conference de la Haye, en 1899, a dirige ses efforts dans
ces deux directions.
Les deiegues ont redigd une Convention pour favoriser
Tarbitrage international et en ont eiabore une seconde ayant
pour but de codifier les lois et usages de la guerre sur terre ; dans
une troisifeme Convention, ils ont etendu les principes de la
Convention de Geneve k la guerre navale. lis ont aussi discute
la question des balles k expansion, des explosifs jetes des ballons,
des obus remplis de gaz deietferes, et ont desapprouve toutes ces
praliqueb, mais non sous forme de traite.
( 73 )
1® Convention Internationale d' Arbitrage.
Le pomt capital de cette Convention est la creation d*une cour
penDanente^ compos^e d'un grand nombre de juges devant
kquelle deux des puissances contractantes pourront porter, pour
one decision finale, tout conflit qui suzgirait entre elles. Le litige
sera soumis aux juges qu'elles choisiront, lesquels juges repr^*
senteront la Cour pour cette question.
Les m^rites du syst^me adoptd par la Confidence de la Haye
peuvent ^tre mieux d^terminds apr^s avoir consid^r^ ce qui
n'y est pas inclu.
II ne permet pas ce qui quelquefois, bien qu'inexactement, est
d^ign^ comme arbitrage obligatoire. P'apr^s la Convention, Tarbi-
trage ne peut exister que par Taction volontaire des deux parties.
II ne permet pas que le litige soit soumis h, desarbitres d^sign^s
seulement pour le diff^rend en question. II est ^tabli une liste
d'arbitres, choisis avant le litige, dans laquelle doivent 6tre
recnit^s les juges qui ont k entendre la cause. La Convention
ne se borne pas h. Tarbitrage, mais foumit les moyens aux tierces
puissances d'oifrir une mediation amicale et aux puissances en
litige dy avoir recours. Elle foumit ^galement les moyens de
r^oudre les questions de fait controversees ; cela, dans Tun et
Tautre cas, sans imposer ni aux tierces puissances, ni aux
puissances en litige, im devoir absolu.
La Convention ne definit pas les litiges susceptibles soit de
mediation, soit d'enquete pour dtablir les faits, soit d'arbitrage.
Attendu qu'il n'y a pas de contrainte, une telle ddfinition n'ctait
pas ndcessaire.
La Convention n'dtablit pas de sanction pour le jugement du
Tribunal arbitral, autre que celle qui peut etre foumie par la loi
municipale et administrative des puissances intdressdes. On a
cru suffisant de s'en rapporter k la bonne foi des puissances et h.
la force de Topinion publique du monde.
La Convention n'exige pas que le jugement soit unanime.
Ici, comme en gdndral, dans les affaires politiques, la majorit<^
doit prdvaloir.
( 74 )
Nous jugeons inopportun, en ce moment, pour TAssociation de
tenter le minutieux examen des details de ce projet complexe.
Ceux-ci pourront 6tre mieux jug^s d'aprbs les r^sultats, aussi
vaut-il mieux diff^rer toute critique jusqu'k ce que soit ddmontr^e
la n^cessitd de modifier la procedure.
Quant aux principes fondamentaux, nous ne croyons pas qu'il
doive y ^tre apport^ aucune modification.
La Convention nous parait ^tre un des meilleurs travaux du dix-
neuvi^me sifecle, dont heureusement la demi^re ann^e a ddjk vu
la ratification par plusieurs des principales puissances.
Nous souhaitons que les hautes puissances signataires qui ont
ratifi^ la Convention et qui n'ont pas encore nomm^ de juges,
conformdment k ses prescriptions, soient respectueusement
invitees aussitot que possible k proc^er k ces nominations et k
la constitution du Conseil administratif permanent charg^
d'organiser le Bureau international mentionn^ dans I'art 28 de
la Convention.
2° Convention concernant les Lois et Coutumes de la
Guerre sur Terre.
L'uniformit^ et la clart^ des rfeglements de la guerre sur terre
sont de la plus grande importance. Actuellement ces rbglements
n'existent pas.
Si un Code de ces rfeglements pouvait €tre T6d\g6 et adopts par
toutes les puissances civilis^es, m^me si ces r^glements dtaient
d^fectueux, le fait seul de leur constitution serait un puissant
argument pour leur adoption.
L' Association fera mieux d'applaudir h, la codification que d'en
critiquer les details.
Cela dit, nous examinerons en detail le r^glement propose, en
recherchant d'abord son origine.
Les regies qui gouvement la conduite des bellig^rants sont
fondles sur Tusage. Des trait^s particuliers entre Etats ont
modifi^ cet usage. Les nations en guerre sont toujours dispos^es
k accentuer celles d'entre les regies qui semblent £tre k leur
avantage.
{ 75 )
Uinfluence de la civilisation moderae sur la guerre a it6
favorable aux id^es humanitaires.
Les regies adoptees pendant une campagne par les forces de
n'importe quel Etat, sont, dans leur principe, identiques ii celles
de Tennemi, toutes deux ^tant fond^s sur Tusage; mais elles
iront en s'^oignant sur certaines questions qu'indiquera I'intdr^ti
et cela avec la pretention, peut-toe raisonnable, d'etre imprtfgn^
de Tesprit d'humanit^.
II n'existe aucun Code commun k tous les Etats, mais chaque
Etat en r^dige un pour luL Cela a 6t6 fait aux Etats-Unis en
1863 pour diriger la conduite de leurs armies sur le champ de
bataille. L'auteur en ^tait Francis Lieber, et c'est sur ce r^gle-
ment qu'ont ^t^ fondles toutes les tentatives modemes de codifi-
cation. Une tentative de cette nature a 6t6 &ite k Bruxelles en
1874, dans une Conference rdunie par TEmpereur de Russie.
Un rbglement d'un caract^re purement scientifique fut r^ig^
par un Comitd de Tlnstitut de Droit international et adopts k sa
Conference d'Oxford en 1880, mais il n'a 6x6 adopts par aucun
Etat
Enfin, nous avons le Code de la Conference de la Haye fonde
sur tous les autres.
Nous allons examiner par oli il diffire des r^glements anterieurs
et comment il &ut en envisager les dispositions.
Le Code de la Haye commence par exprimer Tintention de
ses auteurs de r^pondre aux besoins de la civilisation en
adoucissant les maux de la guerre. Tout en pr^sentant des
regies pour gouverner la conduite de la guerre, il insiste sur ce
point que les cas non r^glement^s spdcifiquement doivent etre
trait^s en conformity avec les regies de Thumanite et les
demandes de la conscience publique, et ne doivent pas £tre
soumis au bon plaisir d'un chef d'arm^e.
La premiere question abordde est celle du caract^re des
troupes, qui peuvent 6tre rdgulieres ou non. On se souviendra
qu*k la Conference de Bruxelles, le conflit au sujet de la Idgalite
de la lev^e en masse fut ddcid^e en faveur des petites puissances
qui s appuyaient en grande partie sur la lev^e en masse pour leur
( 76 )
defense nationale. La rbgle adoptee alors conf^rait les droits
de bellig^rants k la population d'un territoire inoccup^, qui, k
Tapproche de rennemi, prend spontandment les armes pour
s'opposer k renvahissement, sans avoir le temps de s'organiser
conform^ment aux conditions d^j^ dtablies, pourvu qu'elle
respecte les lois et usages de la guerre.
Cette demibre condition n'dtait pas, dans le Code d'Oxford,
appliqu^e au cas special d'une levde en masse, mais y ^tait
g^n^ralis^e et appliqu^e k toute arm^e.
Le Code de la Haye ne copie pas le r^glement d'Oxford pour
cette question, mais suit le Code de Bruxelles k la lettre. Done,
les forces de terre Idgales d'un Etat comprennent: Tarmde
rdgulibre active et ses reserves ; la milice ; la garde nationale et
les corps de volontaires, commandos par des chefs responsables et
portant Tuniforme on un insigne visible d'une certaine distance
et qui portent ouvertement les armes ; enfin, la lev^e en masse, si
elle se conforme aux regies de la guerre.
La seconde partie du Code de la Haye s'occupe du traitement
des prisonniers de guerre. Comme les Codes de Bruxelles et
d'Oxford, il prdconise la throne moderne que les prisonniers
n'appartiennent pas aux individus qui les ont pris, mais k r£tat,
et prescrit que la propridtd non militaire des prisonniers reste en
leur possession.
Les regies relatives k Talimentation, aux peines, aux engage-
ments sur parole et au travail sont empruntdes au Code de
Bruxelles.
Les deux Codes classent dgalement parmi les prisonniers de
guerre les correspondants et foumisseurs, ddment reconnus
comme tels, si leur detention est jug^e opportune. Le Code de
la Haye contient quelques dispositions enti^rement nouvelles,
qui ne sont cependant aucunement rdvolutionnaires.
Uune d'elles est la creation de '* Bureaux de Renseignements "
dans les Etats belligdrants, et aussi dans les Etats neutres, si des
troupes ennemies se rdfugient sur leur territoire et y sont
internees. Ces bureaux devront s'occuper des prisonniers, tenir
un compte individuel avec chacun d'eux et s'occuper de tout ce
( 77 )
qui les.concerne, y compris les frais d'hdpital et ceux r&ultant de
d^s. Ces bureaux sont aussi charges de la garde de toutes les
valeurs d'une nature personnelle, trouv^es sur le champ de
bataille ou en possession des prisonniers dtfc^d^s, pour les rendre
II qui de droit
Une autre nouvelle r^gle accorde aux Soci^tds de secours des
prisonniers, diiment constitutes, les facility ndcessaires pour lears
travaux humanitaires, sous le controle toutefois de la discipline
militaire et de police. Les dons tX les secours procures aux
prisonniers par ces intermddiaires doivent £tre exempts de frais
d'importation ou d'autre taxe et 6tre exp^dids gratuitement par
les postes ou les chemins de fer de TEtat
Une autre nouvelle rbgle procure aux officieis la solde que par
leur position ils pourraient avoir chez eux, mais naturellement
aux frais de leur propre Gouvemement
Les prisonniers doivent jouir de la liberty du culte sous le
controle de la police. Leurs testaments doivent £tre regus ou
r^digds ; leur mort et leur inhumation attestdes, comme pour des
gens du pays. La paix sign^, les prisonniers doivent ^tre
rapatri^ dans le plus bref d6\&u
On ne pent rien dire contre ces nouvelles dispositions ; ces
bureaux sont une excellente pensde ; tout le chapitre est conforme
k la th^orie modeme que les prisonniers sont retenus par
n^cessit^ militaire, mais qu'envers eux, ni les individus, ni la
nation ne peuvent exercer vengeance ou repr^sailles.
Les soins k donner aux malades et aux blessds sont simplement
plac^ sous la Convention de Geneve.
Nous arrivons maintenant ^ la question importante des
hostilit^s. Le Code examme ce qui pent ^tre et ce qui ne peut
pas etre fait pour nuire k Tennemi.
Au commencement on rdp^te, presque litt^ralement, la liste des
prohibitions du Code de Bruxelles. II faut cependant remarquer
qu*on a substitud au terme de meurtre, dont celui-<:i se sert pour
designer Taction de tuer traltreusement, la phrase de tuer ou de
blesser, ce qui constitue une extension de Tid^e.
La Convention de Saint-P^tersbourg r^glementant la dimension
( 78 )
des explosifs n'est pas textuellement citde, comme dans les Codes
de Bruxelles et d'Oxford, mais ses prohibitions et celles des
autres trait^s de ce genre sont h, consid^rer.
La Convention de la Haye dit que, "outre les prohibitions
dtablies par des conventions sp^ciales, il est interdit," etc.
Les trois Codes sont d'accord en ce qui conceme les armes.
Le Code de la Haye porte qu'il "est interdit d'employer des
armes, des projectiles on des mati^res propres k causer des maux
superflus." I^ Code d'Oxford cependant ajoute la phrase : " ou
k aggraver des blessures." Le langage de tous les codes est
malheureusement vague sur ce point ; celui qu*emploie le Code
de la Haye Test peut-^tre intentionnellement, afin d'^viter un
conflit au sujet d'une balle expansive, interdite par une d^laration
spdciale k laquelle n'avaient pas souscrit les ddl^gu^s de la
Grande-Bretagne et des Etats-Unis. Les declarations defendant
Tusage des balles expansives, des explosifs lances des ballons
(ceci pendant cinq ans) et des projectiles charges de gaz d^^t^res,
bien qu'appartenant k cette cat^gorie, ne font pas partie de la
convention et nous ne nous en occupons pas dans ce rapport.
Pour ce qui est du bombardement, autre question tr^s
controversde, les regies adoptees k Bruxelles sont suivies k la
lettre. Seules, les places d^fendues peuvent £tre ainsi attaqu^es ;
avis doit en dtre donn^ ; les ^tablissements affect^s aux arts ou
ayant un but charitable ou religieux seront d&ign^s et ^pargn^s,
k moins qu*on ne les fasse servir k un but militaire. Le pillage
est d^fendu, m^me en cas d'assaut
Le chapitre II de la section II traite de la definition des
espions et de la manifere de les traiter quand ils sont pris. En ce
qui conceme le premier point, il y a accord enire les Codes, y
compris celui de lieber, sauf celui d'Oxford, qui passe cette
question sous silence. II faut qu'il y ait d^guisement, recherche
de renseignements dans les lignes ennemies et Tintention de faire
parvenir cette information aux mattres de Tespion. Cette
provision sauve les militaires en uniforme ainsi que les adrostiers.
Sur ce dernier point, le Code de la Haye corrige k juste titre
celui de Bruxelles. Pour ce qui est des p^nalites les Codes
( 79 )
difi^rent. Lieber present la mort ; Bruxelles inflige la punition
adopts par Tann^e qui capture; la rbgle de la Haye declare
settlement que Tespion sera soumis k un jugement impartial, *' ne
pourra Stre puni sans jugement prtfalable."
Le chapitre III traite des parlementaires. Les Codes se
ressemblent dans leur manibre de trailer ce sujet, sauf pour un
point secondaire qui seul m^rite d'etre examind Le Code de
Bruxelles permet 2t un chef d'arm^e d'annoncer qu'il ne recevra
aucuD parlementaire pendant un temps sp^cifitf, mais le Code de
la Haye, bien que n'obligeant pas h recevoir toujours le parle-
mentaire, ne permet pas cependant le refus gdn^ral de le recevoir
(chapitre V, de TArmistice).
Ici, la question principale conceme ce qui est permis aux
parties pendant la dur^e de Tarmistice, quant k Tintroduction des
approvisionnements et T^rection ou Tam^oration des defenses.
Le Code de la Haye soumet cela k un accord sp^ial dans
chaque cas, copiant ainsi la rbgle adoptee k Bruxelles.
Le Code d'Oxford ne traite pas ce sujet II est probable
qa'aucune autre solution de la question ne serait satisfaisaute.
Nous arrivons maintenant 2i la plus iroportante de toutes les
questioDS relatives k la guerre : les rapports entre les habitants et
Farm^e d*occupation dans un pays envahi.
Cette section commence par une definition du ''territoire
occup^/' dans les m^mes termes que ceux adoptds k Bruxelles.
Comme la levde en masse est legale settlement dans un territoire
inoccupd, tandis que dans un territoire occup^ les m^mes actes
constitueraient une sorte de trahison punissable de mort, il devient
important de d^finir Texpression.
MSme divergence que dans la discussion, k Bruxelles, sur la
levee en masse entre les grandes et les petites puissances. Les
premieres soutenaient que Toccupation doit Stre cens^e effective
une fois Topposition premiere tfcrasde, de plus que Ik oh aucune
force militaire n'^tait rencontr^e le simple passage de troupes k
travers un pays dquivalait k son occupation. D'autre part, on
soutenait que Toccupation doit toe constante, actuelle et effective.
Le langage des deux Codes montre que ce dernier point de vue,
( 8o )
dans tine forme quelque peu roodifide, a prdvalu, et heureusement,
car c'est clair et juste. Le langage de la rbgle d'Oxford montre
une difii^rence, mais non pas un progr^s, bien que le sens soit le
m6me. Le Code de la Haye ^tablit ensuite la vraie thdorie des
droits de juridiction obtenus par le vainqueur sur la population
d'un territoire occupd Attendu que le pouvoir actuel pour
exercer I'autorit^ a pass^ des mains du souverain Idgal antdrieur
entre celles de roccupant, lui seul a le devoir de prendre les
mesures qu'il jugera ndcessaires pour r^tablir Tordre, en appli-
quant les lois existantes, k moins que cela ne soit absolument
impossible.
Le progr^s constant de ce principe, depuis le Code de Lieber,
prouve d'une manibre satisfaisante que les id^es d'humanit^ ont
gagnd du terrain dans la question des r^glements de la guerre.
Lieber ^tablit d'une fa^on tr^s d^taill^e I'application de la loi
martiale dans un territoire occup^. La loi martiale est, selon lui,
simplement Tautorit^ militaire exercde en vertu des lois et* usages
de la guerre. II ajoute cependant :
" Le droit civil et penal continuera k suivre son cours dans les places et
territoires ennemis, sons la loi martiale, k moins d'6tre suspend ue par ordre
dn pouvoir militaire occupant ; mais toutes les formations du gouvernement
ennemi — legislatives, executives et administratives — qu'elles soient de
caract^re g^n^ral, provincial ou local, cesseront sons la loi martiale ou conti-
nueront seulement sons le contrdle on, si cela est jug^ n^cessaire, avec la
participation de I'occupant ou de I'envahisseur.*'
Mais en ceci, il n'y a pas une forte prdsomption que la volont^
du conqu^rant se manifestera par Tadoption du droit local,
encore moins y trouve-t-on la r^gle positive qu'ellc doit se
manifester ainsi.
Le Code de la Haye suit de trfes prfes celui de Bruxelles, se
servant des mdmes termes dans quelques cas, ailleurs s'^tendant
davantage et dtant plus explicites, en tons cas sans reculer.
Cependant, le maintien des anciens fonctionnaires sous le nouveau
regime ne paratt pas ^tabli d'une fa9on aussi claire que dans les
regies de Bruxelles.
L'article 50 du Code de la Haye est une nouvelle rfegle et
une rbgle importante. II declare qu'aucune p^nalit^ p^cuniaire
( 8i )
on autre ne sera impos^e 2t un district, k cause d'offenset
commises par des individus dans ce district, k moins que la
respoDsabilit^ de la masse des habitants puisse £tre ddmontr^e.
Ceci rendrait illegal Tusage de 1870-71, d'itnposer des amendes
aox comrounes si des violences s'y commettaient contre les trains
et convois sur le chemin de fer ou sur les petits d^tacheroents de
troupe. — Comme k Bruxelles, les contributions et les requisitions
sont reconnues legitimes. Comme dans le Code de Bruxelles, il
est pr^vu que pour les paiements en nature et les contributions il
sera donnd des re^us.
II serait k souhaiter qufen prescriytt une mdthode pratique pour
assurer le remboursement de la valeur des approvisionnements,
du travail, de Targent foumi k Tenvahisseur h, titre de contribution
on de requisition. Uenvahisseur donne sans doute souvent des
re9is et de Ik on pent certaineroent conclure k la reconnaissance
d'une dette par son Gouvemement, dette k acquitter d'une fa^on
qnelconque, k une dpoque quelconque, soit par ce Gouvemement
ou par son ennemi, quand on ^tablira les comptes de la guerre.
Mais ce qui n'est qu'une consequence devrait devenir une
r^gle fixe.
Nous pensons que comme pour les prisonniers et leurs comptes
on pounait instituer une commission sp^ciale chargee de veiller
an remboursement de ces regus par le Gouvemement qui les a
doones et qui est le cr^ancier direct et responsable. Quant k
savoir si les sommes ainsi rembours^es peuvent £tre recouvr^es
dhs le retablissement de la paix, c'est li une question qui conceme
les deux Gouvemements.
Une section du Code d'Oxford (42) contient une importante
proposition que nous voudrions rappeler et recommander; elle
present que la population d'un territoire occup^ soit informee,
anssi publiquement et aussi largement que possible, jusqu'oii
s'etend Inoccupation et quels sont les pouvoirs qui en ddcoulent
pour les occupants. Car lorsque Tobeissance d'une region con-
siderable k son souveiain est soudainement suspendue et que de
nouveHes obligations sont imposees, sous de fortes penalites, il
est certainement de la plus eiementaire justice de publier les
G
( 82 )
noms des localit^s qui tombent sous le coup de la nouveUe
juridiction, et de leur faire savoir quelles sont leurs obligations.
Nous pensons qu'il est regrettable que le Code de la Haye n'ait
pas incorpor^ cette disposition.
Les autres articles de la Section III n'offrent rien de noureau,
ni rien k critiquer.
La demi^re partie du Code, Section IV, conceme le neutre
qui h^berge les troupes qui peuvent chercher refuge sur son
territoire et qui prend soin de leurs blesses. II doit les emp^cher
de continuer la guerre, car dvidemment un territoire neutre ne
doit pas devenir une source de danger eii m^me temps qu'un lieu
de refuge. Les regies de Bruxelles ont ^t^ copi^es textuellement
k la Haye sur cette question, mais le Code de la Haye ajoute
que les malades et les blesses de Tun des combattants, envoy^s
dans un territoire neutre par Tautre combattant, doivent ^tre
empdch^s par le neutre de prendre part de nouveau h. la guerre.
£n r^sumant le caractfere du Code de la Haye, nous pouvons
dire qu'il est 6\ey6 et pratique et qu'il ne contient rien que puisse
d^sapprouver raisonnablement un combattant civilisd.
Les modifications que nous avons proposees et les critiques
que nous avons cm devoir faire sont de peu d'imp>ortance, en
comparaison de son admirable esprit et de la valeur de son
ensemble, en vue du progrbs de Thumanit^ relativement k la
guerre.
3° Convention destin6e k Atendre k la Guerre Navale
LES Prescriptions de la Convention de Geneve.
La Convention T6dig6e par la Confi^rence de la Haye en vue
d'dtendre les principes de la Convention de la Croix Rouge k la
guerre navale paratt admirablement adapt^e k son but, et autant
qu'il est possible d'en juger d'avance, elle est destinrfe k bien
fonctionner dans toutes les circonstances qui pourront se
presenter.
La Convention originale pour Tamelioration de la condition des
blesses des armdes en campagne fut conclue k Geneve le
22 aoCit 1864, et ratifide par les douze puissances europ^nnes
( 83 )
signataires le 22 juin 1865. La Convention fiit ensnite adoptfe
par dix-neuf autres puissances, les J^tats-Unis y ayant adh^r^ le
I" mars 1882.
Le 20 octobre 1868, une Convention additionnelle, en dix
articles, fut conclue k Geneve par quatorze puissances euro-
ptenes, pour ^tendre aux forces navales les avantages de la
premiere Convention. Les £tats-Unis y adh^rbrent en 1882.
Mais la ratification de ces nouveaux articles ne fut jamais faite, et
par consequent ils n'ont jamais acquis force de loL
La Convention de la Haye est fondle sur ces articles addi-
tionnels de 1868, mais elle leur est sup^rieure au point de vue de
Tordre syst^matique et du souci des details. Elle ^tend aussi
loin qu'il semble possible le principe de la neutrality pour les
navires hdpitaux et autres embarcations diiment reconnues et
chaig^es de secourir les bless^ et les hommes tombant k la mer
dans les batailles navales, ainsi que pour leur am^nagement et
leur personnel
Cette Convention est la consequence logique de la Convention
de Geneve de 1864 qui a tant fait pour adoucir les souffrances
des soldats blesses sur le champ de bataille et dans les hdpitaux.
C'e^ une preuve convaincante du progrbs constant de Tesprit de
soUicitude et d'^gard pour la vie humaine dans la soci^t^ civilis^e ;
esprit qui rend la guerre de plus en plus rare et qui, nous Tesp^rons,
d^couvrira ult^rieurement les moyens de Tdviter tout k fait
Uexperience d^montrera jusqu'k quel point les dispositions de
cette Convention, qui est nouvelle et non experimentee, seront
utiles en pratique.
Jusqu'k ce que cette experience soit faite, il paraft inutile de se
livrer k la critique ou de proposer des modifications.
II faut esp^rer que la Convention sera ratifi^e le plus t6t
possible et que ses avantages seront employes dans les futurs
combats navals.
Mr. Justice Fhillimore, as Chairman of the Committee,
moved the adoption of the Report
The sitting was then adjourned till 2 p.m.
G 2
( 84 )
AFTERNOON SESSION.
At the request of the President, M. MARAIS, Vice-President
for France, took the chair, and the Conference resumed the
previous subject
Dr. W. Evans Darby (Secretary of the Peace Society,
London) presented and read the following paper : —
Progress of Arbitration in the Closing Years of the
Nineteenth Century.
At a meeting of this Association, held in London on the
loth October, 1893, a paper, on "The Continuing Progress
of International Arbitration," was made the occasion of initiating
special work which promised to be useful, but which was happily
interrupted, and to some extent superseded, by the similar, but
more authoritative labours of the Peace Conference at The
Hague.
That paper was supplemental to others read before the Asso-
ciation by the late Mr. Henry Richard, M.P., and the late Hon.
David Dudley Field, by whom the application of the principle of
Arbitration in International politics was carefully reported, and
periodically brought up to date, this being all that was attempted
by this Association in connection with the question until the
special work to which I have referred, which resulted in the
" Brussels Rules " on the Arbitration Treaty, and the " Buffalo
Rules " on the Permanent Tribunal.
My present report takes up the history of Arbitration at the
point where it was left by the last paper in 1893. The remark-
able progress which has been made since then, renders anything
like a detailed account impossible. Following the Behring Sea
Arbitration, to a discussion of which that paper was specially
devoted, there have been more than fifty instances. It is evident
that I can only glance at these, and it must be premised that in
( 85 )
doing so " I use the word Arbitration, not in its technical, but
in its broader and more general sense, as including every kind
of pacific reference or adjudication for the settlement of Inter*
national differences." These instances have also been attended
by such other developments of the system as make this period
both noteworthy and epoch-making in the history of mankind*
It will be necessary to consider these separately. My subject,
therefore, divides itself into three parts : —
I. — Instances of ARBrnuxiON ad hoc
In the year 1893 there were five cases of Arbitration : — ig^^.
(i.) Various vexed questions between Great Britain, Russia,
and A%hani«tan, in regard to the use of the River Kushk, on
the north-west frontier of Afghanistan, were settled by a Joint
Commission appointed by Great Britain and Russia*
(a.) A difference between Great Britain and France, arising out
of a concession made by the Sultan of Zanzibar to M. Grefftihle,
a French subject, which concession was affected by the assump-
tion of the Protectorate by the British, was referred to Mr. R. B.
Martin, M.P., as sole Arbitrator, and his award was given on
July 19th, in favour of M. Greffuhle.
(3.) The claims of an American citizen, Mr. J. R. Santos, for
damages on account of an illegal arrest, were submitted by the
Govenunents of the United States and Ecuador to the Arbitra-
tion of Mr. Alfred St. John, the British Consul at Callao, and
a settlement by mutual agreement was, later, recorded by him.
(4.) France and Chili agreed to submit to an Arbitration
Tribunal, which was, at their request, appointed by Switzer-
land, the claims of Peruvian Bondholders to a sum of money
derived from the sale of guano. Peru has since intervened, and
the proceedings are still pending.
(5.) Certain claims of British subjects, arising out of tlie Chilian
Civil War of 1891, were by the Governments of Great Britain
and Chili referred to a Mixed Commission, with the King of the
Belgians as Umpire. This Commission completed its labours
( 86 )
without requiring the services of the Umpire, and the final
indemnity was paid by Chili in 1896.
1894. Two cases only occurred in 1894 : —
(i.) The first of these, known as the Cerruti affair, between
Italy and Colombia, proved to be one of the most difficult and
interesting cases on record It originated in the year 1885,
when Signor Ernesto Cerruti, an Italian subject in Colombia,
who was obnoxious to the Government, was arrested, imprisoned,
robbed, and compelled to quit the country. In August of this
year (1894) the question at issue was referred to President
Cleveland, who went carefully into it, and in March, 1897,
published his award in favour of Italy. This award was resisted
for a considerable time, and threatened fi^sh complications,
leading nearly to actual war, before Colombia submitted, and
the guarantee, demanded as the result of the award, was paid.
(2.) In the same year a dispute between Colombia, Ecuador,
and Peru, respecting the ownership of lands in the region of
the Amazon, was referred to the Queen Regent of Spain, as
Arbitrator, by whom it has, presumably, been settled.
1895, In 1895 the number rises to nine : —
(i.) Scandinavia and Chili agreed to refer claims of Swedish
and Norwegian subjects, arising out of the Chilian War of 1891,
to the Mixed Commission already mentioned.
(2.) Differences between Great Britain and Portugal, with
regard to the frontiers of Manica-land, in South-East Africa, were
referred to a Mixed Commission, with Count Vigliani as Umpire,
whose award was given at Florence, January 30th, 1897, and,
from the standpoint of International Law, is a very valuable
document.
(3.) The delimitation of the Pamir Boundar}% between Russia
and Afghanistan, was efiected by an Anglo-Russian Joint Com-
mission, at the head of which were General Montagu Gerard,
representing Great Britain, and General Pavolo-Schweikovski,
Governor of Ferghana, the Russian Commissioner.
( 8? )
(4.) A question of alleged personal injuries to British subjects,
at Bluefields (Nicaragua), was, by a Convention signed at
London, November ist, between the Governments of Great
Britain and Nicaragua, referred to a Mixed Commission; and
(5.) similar daims of Bolivia against Peru, arising out of the
recent Peruvian Civil War, were also, by a Protocol signed at
Lima, August 35th, referred to Arbitration ; but the results have,
in neither instance, been ascertainable.
(6.) Hayti and San Domingo, by autograph letters from their
Presidents, agreed to refer to His Holiness Pope Leo XIIL, a
dispute respecting the delimitation of their frontier, but the
results are, up to the present, uncertain and doubtful
(7.) Great Britain and Holland, by a Convention signed at
The Hague, May i6th, referred a question of indemnity for the
seizure of the ship Costa Rica Packet^ to the Emperor of Russia,
who appointed Professor de Martens, Councillor of State,
St. Petersburg, to try the case. His award was announced
on March xst, 1897.
(8.) By a Convention dated October 13th, France and Chili
refened to a Mixed Commission daims similar to those already
mentioned as arising out of the Chilian Civil War of 1891 ; but
by an Agreement signed at Santiago February snd, 1896, the
claims were setUed directiy, and the adjudication dispensed
with.
(9.) Claims of German subjects against Hayti, arising out of
disturbances in the latter country in 1888, were referred to
a Mixed Commission, which sat at Port-^u-Prince, and by it
were adjusted.
The year 1896 also gives nine cases of Arbitration : — 1896.
(z.) The first of these is interesting, as springing out of the
Paris Award of August 15th, 1893, in regard to the celebrated
Behring Sea Arbitration between Great Britain and the United
States of America. The amount of the damages due to Canadian
sealers resulting from that award was, by a Convention signed
February i8th, referred to a Mixed Commission, by which a
( 8« )
unanimous decision was rendered in December of the same
year. The amount fixed by the award (473,151 dollars) was
paid to the British Ambassador in Washington, June z6tli,
1898.
(2.) Frontier differences between the Aigentine Republic and
Chili, which had been standing for many years, were, by a
Protocol dated April 17th, in the case of difference arising
between the experts already appointed, referred to Queen
Victoria, as Arbitrator. Her Majesty accepted the duty; but
it was not until September 13th, 1898; that the two Govern-
ments notified the submission, without any reservation whatever,
of the dispute to the British Government
(3.) On the 1 2 th August, Great Britain and Colombia referred
a dispute, between a British trading firm and a Provincial
Government in Colombia, to a Court of three Arbitrators, which
was appointed by the Swiss Federal Council. Their award was
given October 25th, 1899.
(4.) A warm contention between Great Britain and Brazil,
because of the annexation by the former of the islet of I'rinidaci,
was adjusted through the good offices of Portugal. This, how-
ever, is a simple case of meJiation.
(5.) Boundary questions between Costa Rica and Nicaragua,
springing out of a previous Arbitration, were referred to a Mixed
Commission, with an Umpire to be appointed by the President of
the United States. He nominated General £. P. Alexander,
whose award was given September 30th, 1897.
(6.) By an Agreement between Great Britain and -France,
signed January 15th of this year, the Niger Joint Commission
was appointed "to define the boundary between French and
English territory in the regions west of the lower Niger in Africa."
The Joint Commission met in Paris, and, as the result of its
sittings, the Niger Convention was formulated, and signed at
Paris on June 14th, 1898.
(7, 8 ) Two separate Agreements, relating to similar matters
and bearing the same date, are somewhat unusual. This occurred
early in the year, between luly and Brazil, when on February
( »9 )
xath, Protocols were signed, referring claims of Italian subjects
against Brazil, in the first instance to the President of the United
States, and in the second, to a Mixed Commission. In the
former instance the Protocol was not approved by the Brazilian
Congress, the Minister for Foreign Afiairs resigned, and his
successor settled the matter directly by the allowance of a certain
sum for all the claims covered by the Protocol The result of
the second is not known.
(9.) A dispute between Costa Rica and Colombia, relative to
their common frontier, was, by a Treaty, concluded at Bogota,
November 4th, referred to the President of the French Republic,
who signified his acceptance of the office on the following 17 th of
June. This also is pending.
The highest number of instances is reached in the year 1897, 1897.
when there were fourteen : —
(i.) First of these, in order and importance, is the Agreement
between Great Britain and Venezuela, submitting to the judgment
of an Arbitration Tribunal a boundary dispute, which had lasted
for more than sixty years, and which, in its latest stages,
threatened to embroil the former country and the United States
in actual war. The Tribunal, which was agreed uj>on by a
Convention, signed at Washington, November 12 th, 1896,
between Great Britain and the United States, and to which the
reference was made by another Convention, between the parties
interested, signed at Washington, February and, 1897, sat in
Paris, in June, July, August, and September, 1899. Its award
was given on the 3rd October following, and was accepted as
satisfactory by all parties.
(2.) By a Convention signed January 30th, Great Britain and
the United States submitted the adjustment of the boundary
between Alaska and the British possessions to a Joint Commission
of four members. The question was, however, included among
the matters referred to the Anglo-American Commission, appointed
in June of the following year to consider all questions of dispute
between the United Sutes and Canada. Pending the settlement
( 90 )
by this Commission, a temporary arrangement, of the nature of a
modus Vivendi^ was reached, and a second Agreement of a similar
kind was made in October, 1899. The final adjustment by
Messrs. King and Titman, the Canadian and United States
Boundary Commissioners, has just been announced.
(3.) By the United States and Mexico claims against the latter
for indemnity by two American citizens, on account of alleged
outrages and hardships inflicted upon them, were, by means of a
Special Convention, signed on the 2nd March, referred to Sefior
D. V. G. Quesada, Minister of the Argentine Republic at Madrid,
with plenary powers as Arbitrator. The result is not known.
(4.) France and Brazil, by a Convention, of which the ratifica-
tions were exchanged August 6th, referred to the Swiss Con-
federation the settlement of the disputed boundary between the
latter country and French Guiana. The award of the Arbitrators,
I am informed by the Brazilian Legation in London, will be
given within the next four months.
(5.) Great Britain and Germany submitted to a Court of
Arbitration at Zanzibar a claim made against the former by a firm
of German merchants in South-Eastern Africa.
(6.) Bolivia and Peru referred a dispute about territory to the
Arbitration of the Queen of Spain. The results are not known.
(7.) A boundary dispute between France and Germany, in
reference to the ** Hinterland " of Togo, on the. Gold Coast, was
referred to a Joint Commission, which began its sittings in Paris
in May and announced the satisfactory conclusion of its labours
on July nth.
(8.) A dispute between Japan and Hawaii, regarding Japanese
immigration in the Sandwich Islands, was referred to a Joint
Commission. Owing, probably, to the American annexation of
these islands, the result has not transpired.
(9.) A claim to the regency, and, therefore, to the succession
to the princely throne, of Lippe-Detmold, was submitted to the
Arbitration^ of the King of Saxony, whose decision was published
in July.
(10.) A question between Great Britain and Belgium, in regard
( 91 )
to the arrest, detentioiii and expulsion of a British subject
(Mr. Ben Tillett), was referred to M. Arthur Desjardins, Avocat-
G^^ral of the French Court of Cassation, whose award was
given, January, 1899, in favour of Belgium.
(11.) A Delimitation Commission, appomted by Turkey and
Greece, at the close of the war between them, to determine on
the spot the new frontier line, began its work on September x8th,
within fifteen days after the signing of the Treaty.
(12, 13.) Two Arbitration Agreements were entered into
between the United States and Siam. By the one it was arranged
that a mixed Commission^ which had been appointed to investi-
gate an attack made by Siamese soldiers, in the previous
November, upon Mr. E. V. Kellett, the United Stotes Vice-
Consul in Siam, should be constituted a Board of Arbitration to
decide the matter. The Arbitrators, Messrs. John Barrett and
Pierre Orto, gave their award, on September 20th, in favour of
the United States. The other, which was dated the 6th July, had
reference to the claim of Dr. M. A. Cheek, an American citizen,
against the Government of Siam, for illegal seizure and sale of
property. It was referred to the Arbitration of the late Chief
Justice, Sir Nicholas J. Hannen, who gave his award March sxst,
1898, in favour of the United States.
(14.) In December of this year also an Agreement was made
between the United States and Hayti, to arbitrate the claim of an
American citizen, Mr. Bernard Campbell, for alleged injuries at
the hands of Haytian soldiers.
The record of 1898 includes only five cases : — 1898.
(i.) The first arose out of the interminable Behring Sea
difficulties, and was an Agreement between Great Britain and
Russia to refer to Arbitration indemnities claimed for the seizure
of Canadian vessels within Russian jurisdiction in the Behring
Sea. The reference was first made to Mr. Alphonse Rivier,
Professor of International Law at Brussels, and on his death in
the month of July, to Professor H. Matzen, of Copenhage.i,
President of the Danish Senate ; it is still pending.
( 9^ )
(3.) As the result of the labours of the Joint Commission
appointed by Great Britain and France, January 15th, 2896, to
determine the Niger boundary, the "Niger Convention** was
signed on the 14th June, 1898. By Clause 5 of this Convention,
two Commissions were agreed upon, one to delimitate on the
spot the frontiers west of the Niger; and the other, those east of
that river,
(3.) By an Agreement between Great Britain and the United
States in May, 1898, a Joint High Commission of ten members
was appointed " to consider all subjects of controversy between
the United States and Canada, and to frame a treaty between the
Governments for the complete adjustment of these differences."
The Commission held various sittings both in Quebec and
Washington. In February, 1899, it adjourned until the and of
the following August, but has not again met
(4.) A question between Chili and Peru, as to the form of a
plibiscite of the inhabitants of the latter country, was referred to
the Arbitration of the Queen Regent of Spain ; the results have
not been ascertained.
(5.) A difference between the Argentine Republic, Chili, and
Bolivia, respecting the delimitation of the district of Fu&a de
Atacama, ceded by Bolivia to Argentina, but claimed by Chili,
was, on November 12th, 1898, referred to a Joint Commission of
five members, the results of whose labours were announced by
the Ministers of the respective countries, March 25th, 1899.
1899. The number sinks to four in 1899 : —
(i.) A proposal by Great Britain to Brazil, to submit the
Guiana boundary question between them to Arbitration, was
accepted on March 8th, and Senhor Joaquim Nabuco, formerly
Secretary to the Brazilian Legation, and at present Brazilian
Minister in London, was appointed Commissioner by Brazil to
negotiate the Arbitration Treaty with Great Britain, and to
prepare the case. He is at present engaged on this work.
(2.) Difficulties having arisen between Great Britain and
France, in connection with territories in the neighbourhood of
( 93 )
the Nile, in Eastern Africa, an Arrangement was concladed
dealing with these as a Supplement of the Niger Convention
concladed the previous year. This Arrangement provides for
another Mixed Commission to complete the delimitation on the
spot
(3.) The Samoan Joint High Commission, appointed by
Great Britain, Germany, and the United States to settle the
difficulties in Samoa, arising out of the alleged infraction of the
Berlin Treaty of 1889, sailed from San Francisco on April 36th,
satisfeictorily completed their work in the Samoan Islands, and
left on August i8th. An Agreement for the partition of the
islands was signed at Washington, December ssnd, 1899.
(4.) By a later Agreement between the three Powers, Great
Britain, Germany, and the United States, signed at Washington.
November 7th, the question of compensation for losses sustained
at SanDoa, during the disturbances there, was referred to Arbitra-
tion. It has just been announced that King Oscar of Sweden
and Norway has accepted the functions of Arbitrator.
Although the last year of the Century is preoccupied with war, 190a
it, nevertheless, furnishes its quota of cases of Arbitration : —
Early in the year a Joint Commission of four was appointed
by Great Britain and Russia, to determine the claim of a British
trading firm, Messrs. Jardine, Mathieson & Ca, to property held
by them in the Russian Concession at Hankow.
It has also been arranged between Great Britain and China
that the claims of British subjects arising out of the sinking of
the British steamer '' Kowshing," more than five years ago, shall
be referred to the Arbitration of Mr. Choate, the American
Ambassador to the Court of St James's, who has undertaken
to act
A letter from Washington, in March, states that a Joint Com-
mission had been created to determine the boundary line along
some of the waterways separating the United States and Canada.
In the same month Renter's Agency reported that a dispute
which had arisen between Bulgaria and Roumania, regarding the
( 94 )
possession of the island of Echekadasi, opposite Sistova, would,
at the request of the former, be submitted to Arbitration, in
conformity with the arrangements made by the Hague Peace
Conference. The same agency reports that in May views were
exchanged at Constantinople on the question of Arbitration in
the matter of the Turco-Greek Consular Convention, and also on
the subject of the proposed increase in the Turkish Import
Duties. The Moorish Government is reported to have addressed
to the French Government a formal demand to submit the
matters in dispute between them, relating to French action in the
Western Sahara, to the Arbitration of the European Powers.
These are rumours and possibilities, rather than actual historical
facts ; but they all indicate steady progress.
My list closes with two fresh cases of Arbitration between
Great Britain and France, recently announced, by Mr. Brodrick,
Under-Secretary of State for Foreign Affairs, in the British
House of Commons. Mr. Brodrick remarked that, "Within
the last few hours the Government had received from the French
Government acceptance of the principle of immediate Arbitration
in respect of the amount of compensation due to sufferers by the
Waima incident On the other hand," he said, " Her Majesty's
Government have admitted that they ought to make compensa-
tion for Lieutenant Mizon's ship, the ' Sergent Malamine,' sunk
several years ago, and Arbitration will take place simultaneously
as to the amount of compensation due."
The temper of these announcements, and the way in which
they were leceived, indicate pretty clearly how the principle of
Arbitration is regarded in the civilised world, while the instances
now reported show that it is no mere empty sentiment, or theo-
retical acceptance of the idea, but that substantial progress has
been made in the direction of reducing the principle to practice,
and so, in the direction of International order.
( 95 )
II. — Treaties providing for Arbitration.
In each of these instances Arbitration has been the result of a
separate Treaty providing for that particular case. Provision,
however, is often made for an Arbitration reference in Treaties of
a more general character, by the introduction of special clauses
tor that purpose. Treaties of this description were very seldom
made before the year 187a. Since that date they have become
quite common. They may be divided into two classes : —
(i.) Treaties containing a special Arbitration Clause, that is to
say, a clause carrying the obligation to refer to Arbitration special
points determined by the Treaty itself^ and generally relating to
its interpretation or its application.
(2.) Treaties containing a general Arbitration Clause, that is, a
clause mvolving the obligation to refer all future disputes in a
general way, excepting only such as may be formally enumerated
in the Treaty.
These Treaties are too numerous to give in detail. A number
of the first class, amounting to about twenty, were negotiated
between Italy and other nations by the late Signor Mandni,
whose simple but comprehensive formula was accepted as the
type of a number of others. Belgium, too, inserted the following
clause, which may be reckoned as one of the simplest possible,
into Treaties formed with Greece, asth May, 1895, Sweden,
nth June, 1895, and Denmark, iSth June, 1896, viz.: — **The
High Contracting Parties agree to have recourse to Arbitration
for all disputes which may arise out of the interpretation or
execution of the present treaty.'*
Similar, though sometimes more elaborate, forms occur in a
number of other treaties. In a word, within the last few years
the special Arbitration Clause has been introduced into treaties of
commerce and navigation ; treaties of friendship ; treaties relating
to the delimitation of territory ; treaties of a more general interest,
such as the Postal and other Unions, to which many^States have
given their adhesion ; and many others.
Numerous Treaties of the second class, that is, containing a
( 96 )
general Arbitration Clause, have been formed, chiefly among the
American States, but sometimes between the States of Europe and
other parts of the world, especially America.
Frequently the same Treaty contains clauses of both kinds.
For example. Article 7 of the Commercial Treaty of July 5th,
1894, between Portugal and the Netherlands, runs: ''All
questions or all differences in regard to the interpretation or
execution of the present declaration, and also every other
question which may arise between the two countries, provided
that it affects neither their independence nor their autonomy, if
they cannot be settled amicably, shall be submitted to the judg-
ment of two Arbitrators, one of whom shall be appointed by each
of the two Governments, and in the case of a difference of
opinion between the two Arbitrators, they shall by common
agreement appoint an Umpire." ^ ^
r '
III. — Progress in the direction of a Permanent System.
Most of these Treaties, especially those containing the general
Arbitration Clause, indicate progress of a very definite and
encouraging character. They point to, and, in most instances,
actually provide, as in the Treaty just quoted, some permanent
form of Arbitration.
So, also, a Treaty entered into between Spain and Peru, on the
X4th August, 1897, has a clause (Article I.) which makes Arbi-
tration obligatory in all cases of dispute or difficulty arising out of
the interpretation of Treaties, which had already been, or might
yet be, formed, and also for all other disputes or difficulties which
might arise. It excepted only questions which may be considered
incompatible with Arbitration, such as those afifecting the
sovereignty of the Contracting Parties; but affirmed that even
in such cases the mediation of a friendly Power, with a view to a
pacific solution, would be obligatory.
Here, the Agreement alone is permanent; no machinery is
introduced ; but it is the beginning of an entirely new departure,
while it points out distinctly the path of further advance.
( 97 )
For, separate instances of Arbitration, however valuable they
may be in establishing its practical utility as an effective method
of International settlement, are, nevertheless, only first steps in
the pathway leading towards the goal which this Association, in
common with others, has before it, viz., the establishment of a
settled and complete International order, with an authoritative
legal code and properly constituted Courts of Justice. And
Arbitration Clauses in Treaties, making provision as they do for
the future, are so many links between sporadic attempts and a
regular system.
Recent years have disclosed an increasing willingness to resort
to Arbitration in the case of International disputes which have
threatened to disturb the peace. Still, it is evident that isolated
instances involve no definite progress in the direction of that
juridical status which is to take the place of the old rkgimt of war
and militarism, and which, by offering protection, and a ready and
sure method of settling difficulties, to the States now oppressed
by fear and by military preparations, will make it possible to
lessen the burdens which have carried the civilised nations
appreciably nearer the final catastrophe since the time when the
Tzar issued his famous protest, and made his benevolent attempt
to establish a modem '' truce of God," that should at least check
the growth of enormous armaments. Such instances will always
be open to the objections which have been so vigorously uiged
agabst them. They consolidate no authoritative practice, they
establish no precedents, and they occupy a distinct position
among the factors of progress only as they prepare the way for
what is to follow. What is necessary is, the organisation of a
permanent system ; and that can be effected only by the peoples
acting through their responsible rulers.
It has been urged that International Law is not really law,
inasmuch as it lacks the chief characteristics of law in not being
set by Sovereign authority to those subject to it, and in being
without the means* of compelling obedience. A Court, it is said,
which cannot enforce its decisions, is quite powerless to prevent
war, and is thus useless. But such reasoning leaves out of
H
( 98 )
account human nature, the force of popular opinion, and the facts
of actual experience, such as those which have come before us.
At any rate, it is evident that the pacific method of settling
difficulties by reason and law can never become the established
order of the world without the distinct organisation, by common
agreement, of an International system involving the formation of
a permanent tribunal, to which differences may be referred as
they arise. The very existence of such a tribunal will be a
constant invitation to adopt the better way of argument and
discussion, and an incitement to that poptdar pressure upon
Governments, and that moral coercion upon intending com-
batants, which may in practice take the place of the Sovereign
authority.
The significance of the period under review, and of the
progress in regard to Arbitration which will cover these closing
years of the century with undying ^lat, is, that it is mainly in this
direction that the progress lies. The Arbitration movement has
ceased to be confined to popular organisations, to the advocacy
of statesmen, jurists, philosophers, and others who have greater
foresight than their contemporaries, or even to combinations of
politicians (such as Mr. Dudley Field rejoiced over in his address
to this Association), who have banded themselves together for the
purpose of advocating and formulating such a system on political
lines, and of urging it upon their leaders and rulers. It has come
within the sphere of practical International politics. Under the
pressure of circumstances and of the necessities of human
progress, it has been taken in hand by the nilers themselves, and
in their hands the pace has become rapid, and even startling.
The Anglo- The first and most striking diplomatic instrument by which the
TreS^^*" new departure was attempted, was the Anglo-American Treaty,
which was signed by the representatives of Great Britain and the
United States at Washington, nth January, 1897, and ultimately
adopted in the American Senate by a large majority. Unfor-
tunately, that majority was not large enough for its ratification,
and so for giving the Treaty its due force as a contribution to
! International Law, and for setting it in motion as one of the
i
( 99 )
primal factors in the creation of the new age of juridical order.
This Treaty differed from all previous Arbitration Agreements in
its permanent provisions for the creation of specified Arbitration
Tribunals, to which the Contracting Parties agreed to submit, as
they should arise, "all questions in difference between them
vhich may &il to adjust themselves by diplomatic negotiations."
The pormancnt element in the Treaty was its provisions for
specified tribunals. This lifted the procedure out of the rut of
the former practice of Arbitration ad hcc^ and so far sought to
establish a permanent and practically automatic system between
the two countries. Its non-ratification by the American Senate
leaves it only an historical landmark, and a testimony to the
official goodwill and intention of both countries, or, as the late
Mr. Bayard phrased it, '' the expressed will of two free peoples."
Similar progress was marked by a second diplomatic instru- The lulo-
mcnt, rix., the Treaty, signed at Rome on July a3rd, 1S98, xroS'^.*"*
between the Kingdom of Italy and the Argentine Republic, by
which the Contracting Parties '' bind themselves to submit to an
Arbitration decision all the disputes, whatever may be their
nature or cause, which may arise between them, when such
cannot be adjusted in a friendly way by the ordinary course of
diplomacy y" even though such disputes may have arisen prior to
the negotiation of the Treaty.
The permanent character of this Treaty also lay in its pro-
visions for the creation of a tribunal as the necessity should
arise. It was still, therefore, a tribunal ad hocy although the
Agreement creating the tribunal was not tut hoc^ nor the pro-
cedure which was determined by it Nevertheless, it is one of the
first steps, although a small one, in the direction of a permanent
S3rstem.
First steps, however, usually lead to others: an argument
vhich has been frequently used as a plea by those too ardent
and optimistic advocates, as they have been considered, who
have urged a beginning on the part of two States only^ if
others were not ready to follow. A permanent Treaty in the
same terms has also been formally concluded between the
H 2
( loo )
Argentine and Uruguay, and both signed and promulgated.
Negotiations, too, are on foot for its conclusion, with some
modifications, between the Argentine Republic and Brazil, and
between Brazil and ChilL So the ball is rolling, and a good
example is repeating itself.
The Hague gtin greater progress is marked by the proceedings of the
Hague Peace Conference, in which these South American
Republics are not, up to the present, included. The various
Conventions and Resolutions which were adopted by it, and,
in fact, the very existence of the Conference, register advance in
so many directions that it is impossible, especially at this short
distance of time, to estimate their full significance. The
" Pacific Convention " alone, adopted on the 29th July last year,
is an instrument so complete in itself, and opens up so many new
lines of enquiry, that it will repay ample and careful study. The
future will doubtless reveal its importance, and show the date of
its adoption as one of the golden numbers of the world's
chronology. It is especially significant from the standpoint of
my subject, notably in this, that it actually creates the new
permanent organisation. Already more than the required number
of Signatories have ratified the Convention, and the Bureau in
the Prinsengracht at the Hague, with its standing Court of Arbi-
tration behind it, represents the actual beginning of a new era.
The first International Court of Justice is there established. The
system of International Arbitration, through the formation of
this permanently constituted Tribunal, receives definite shape ;
the principle clothes itself in a durable body. The rest will
follow.
All this, however, is only a beginning, and much yet remains
to be done. The history of legal practice shows continual
modification, adaptation, development — the constant changes,
in fact, which are incidental to living organisms. Even if
International Law were as well established and defined as the
Institutes of Justinian, the Code Napoleon, or any of the systems
which, '' broadening down from precedent to precedent," govern
the intra-national administration of justice, there would yet be
( lOI )
Toom for the work of an Association like this. But International
Law is still in its infancy, and the new departure of the Hague
Conference — in no wise affected by subsequent military pro-
ceedings which in their character belong only to the past, to the
rigime of barbarism and to the lower stages of the evolution of
International Society — only renders that work the more necessary
and urgent, while it carries a new inspiration — that which arises
from palpable progress. If the new century only sustains the
rate of progression which has marked the one now closing, it will
multiply the signs, already everywhere apparent, which show how
true were the instinct and prevision of the poet, who did not
merely dream when he sang of '' the Parliament of Man, the
Federation of the World," and it will bring inmieasurably nearer
the new, coming era in which —
" The commonsense of most shall hold the fretful realms in awe ;
And the kindly earth shall slumber, lapt in universal law."
The Chairman thanked Dr. Darby, observing that the Con-
ference had listened to a very interesting paper on a most
interesting subject, breathing throughout a great spirit of
humanity. He hoped that the sun would soon rise in its full
brilliance, of which ^we now only saw the glimmering of the
dawn.
liir. Benedict : It is not of very much importance, but I wish
to call the attention of the Conference to one case of Arbi-
tration which I think has been omitted ; and I speak of it because
it is one of the cases which must be admitted to be unsatis-
factory, and may therefore be thought to throw discredit on the •
cause of Arbitration. I refer to a dispute between America
and China; it was a case where an American citizen had a
claim against the Chinese Government It was referred to an
arbitrator — I do not recollect his name at the moment His
decision was, that though the American citizen had good grounds
for his claim for damages, he also found that Chinese subjects
had been ill-treated in America, and so he would award no
damages.
( r02 )
Prince Cassano (Paris) : Nous avons 6cout6 avec beaucoup
d'int^rfit tous les rapports prdsent^s par M. Alexander sur la
Confifrence de la Haye.
M. Alexander est surtout le rapporteur des Amdricains, son
rapport est bien fait, mais les ^tudiants comme moi tranchent les
questions un peu plus k fond.
En somme, cette convention doit fitre comme la femme : il
faut Tadmirer, il faut mfime Fadorer, mais il ne faut pas se con-
tenter de ce travail II ne faut pas non plus la consid&er comme
(pour employer un terme amdricain) une cristallisationde tout ce que
Ton pent esp^rer. II faut la consid^rer comme une simple tentative.
La conference de la Haye a fait beaucoup de bien mais elle a
fait aussi un peu de mal, parce qu'elle a trop g^n^ralis^ les
mati^res. Or, tout en restant diplomates, nous pouvons, je crois,
nous autoriser de faire ce qu'elle a laiss^ de c6t6 surtout sur ce
point, et je le dis un petit peu par orgueil national
Eh bien, nous avons ^t^ les premiers, nous autres, Italiens,
nous avons admis partout le principe de Tarbitrage en matifere de
trait^s de commerce, tandis qu'k la Haye cette question a presque
6t6 mise absolument de cotd. Partout elle a 6i6 mise de cdt^.
On pent le dire, car dans beaucoup de discussions inter-
nationales, quoique le temps ne soit pas encore bien dloign^
depuis que le ministre Mancini avait fait insurer cette clause dans
tous les traitds de commerce, on a d^jk ^cart^ cette clause de
Tarbitrage des trait^s de commerce et des autres conventions
commerciales.
Or, je crois qu'il serait utile de pousser toujours les J^tats dans
cette voie, non seulement pour les trait^s de commerce oU elle
est devenue n^cessaire mais aussi dans tous les autres cas.
Uinsertion des clauses d'arbitrage rdm^dierait k tout ce qui peut
de pres ou de loin toucher aux questions intemationales.
Nous avons k Tordre du jour diverses questions relativcment
aux conventions intemationales et dans lesquelles la question
des clauses d'arbitrage est mise de cdt^.
Je me limite, car les 6tats ont reclame, dans les joumaux, et
alors il est arriv^ ceci, c'est que tr^s souvent lorsque les
( 103 )
tribunaax jugent une afiaire on la traite k son point de vue
Les pardculiers qui se trouvent devant ce tribunal n'ont rien k
fhire lorsqu'ils ne peuvent recourir k Tarbitrage car nous trouvons
toujours le canon derri^re le papier timbr^. Mais lorsqu'il s'agit
de forces ^quivalentes ou d'avantages contraires, nous ne
pouvons en sortir ; alors Tarbitrage devient absolument n^essaire.
Nous pouirions maintenir que la clause d'arbitrage de contrats
privds, qui est absolument utile,. doit 6tre obligatoire et cheicher
I ^tablir une doctrine qui de plus en plus m^nerait k cette vote.
}e tiens k appeler Tattention sur cette lacune de la conference
dc la Haye.
L'oiateur termina en proposant une resolution tendant k
constituer des tribunaux d'arbitrage mixtes pour r^gler les
questions de droit privtf entre les nationaux d'^tats difTtfrents.
Dr. Emile Stocquart (Brussels): Je voudrais poser cette
question :
Quel est le but pratique de cette id^e ? et pourquoi vouloir
constituer un tribunal special? Nous avons les tribunaux qui
d^dent de ces affaires d'apr^s les principes admis dans les nations.
De m^me il faudrait que toutes les fois que des juges ont
entfeux des difficult^, soulevant des questions de droit priv^, au
lieu que ces difficult^s soient jug^es par les tribunaux qui se
trouveraient saisis et vraisemblablement fix^s, c'est Tarbitrage qui
les ^dairerait
II ne fiaLudrait pas, en un mot, que le d^fendeur qui a une action
soit soumis k la loi du pays dans lequel il est appel^. C'est Ik cette
th^rie, il serait pr^fdrable qu'un arbitre fftt juge de la question.
Ces arbitres seraient composes de personnalitds appartenant
aux diverses nations. II ne se produirait pas ce r^sultat, qu'k
propos d*un m^me abordage qui ^tait survenu entre un navire
italien et un navire fran^ais il est arriv^ que ce mdme abordage
a donn^ naissance k deux proems, dans deux nations diff^rentes ;
la solution a ^t^ diffifrente. Ce rdsultat serait dvite s'il existait
un trait^ aux termes duquel toutes les difficult^s seraient resolues
par un tribunal compost dans des proportions d^teiminces.
( I04 )
M. Israels (Paris) : Je demande une simple explication :
Le rapport est bien d'une grande clart^, seulement pemiettez-
xnoi de vous demander une explication, afin d'^clairer mon opinion.
Dans le commentaire que nous avons re^u on dit souvent que
ces conventions n'ont pas encore 6x6 mises en pratique. Seulement
11 y a eu un point ou une question qui s'est ddjk pr^sent^ en ce
qui conceme Tapplication de la convention et sur lequel des
difif(frences d'opinion se sont fait jour k la confidrence de la Haye.
Je voudrais bien savoir, en laissant de c6t^ toutes affaires
politiques, pour ne traiter la question qu'au point de vue juridique,
si depuis que la conf(^rence a eu lieu on a le droit de demander
Tapplication des regies concernant I'intervention, c'est k dire
Tarbitrage. La question ne se pose pour ainsi dire pas parce
qu'elle suppose I'acceptation volontaire des deux parties ; il faut
que les deux parties recourent k un tribunal arbitral.
II y a une autre question.
Le rapport dit que la convention '^foumit les moyens aux
tierces puissances d'offrir une mediation amicale et aux puissances
en litige d'y avoir recours."
La convention concernant Tarbitrage peut-elle etre invoqu^e
dans de telles conditions entre une puissance signataire et une
puissance non signataire ?
M. AuiRAN (Marseilles): Je pense que M. Israels veut de-
mander si d'une fa^on g^ndrale la mediation doit ^tre faite par
une puissance signataire et si une offre de mediation peut 6tre
quelquefois consid^rde comme un acte anti-amical et si lors-
qu'une puissance n'a pas adh^r^ k la conference de la Haye et
qu'elle soit en difficult^ avec une puissance signataire, une
tierce puissance peut intervenir et offirir sa mediation.
Je crois que c'est Ik la question.
11 y a un article de la Convention, Tarticle 6o,^ qui indique
une condition qui'na pas ^t^ signal^e k la conference. La tierce
» Article 6o of the Arbitration Convention of the Hague : " Les conditions
auxquelles les Puissances qui n'ont pas ^t^ repr^ntees k la. Conference
Internationale de la Paix pourront adherer k la prisente Convention formcront
robjel d'une entente ullc'ri^wj.^ cntrc les Puissances contractanies."
( 105 )
puissance pourrait devenir k son tour adh^rente h cette
convention.
M. Israels : £n rdponse II Tobservation, rarticle 3 dit : —
" Ind^pendamment de ce recours les Puissances signataires
jugent utile qu'une ou plusieurs Puissances dtrang^res au conflit
offrent de leur propre initiative en tant que les circonstances s'y
pi^tent leurs bons offices ou leur mediation aux Etats en conflit
" Le droit d'offrir les bons offices ou la mediation appartient
aux Puissances ^trang^res au conflit mime pendant le cours des
hostilit^s.
" L'exercice de ce droit ne peut jamais 6tre considrfrrf par Tune
ou I'autre des parties en litige comme un acte peu aroical."
Si cette puissance k laquelle on ofire la mediation est signa-
taire, mais si Tautre ne Test pas, la mediation ne peut done avoir
lieu, selon Tarticle 3.
The Chairman : Deux puissances, une signataire et Tautre
non signataire, ont un diffdrend. Une autre puissance dit : je
vous ofie ma mediation ou mon intervention; est-ce que cela
peut 6tre consid^^ comme un acte peu amical ? Entre puissances
signataires : non. Mais autrement : oui.
Sir Walter Phillimore, in reply to the question of M. Israeb,
stated that whilst any Power could always offer mediation, the
Convention could not have any effect beyond its limits, so as to
bind nations not xz^des to it. A nation may, if it is foolish
enough, treat as an imfriendly act the offered mediation of a
Power which is not a party to the Treaty.
Dr. GovARE (Paris) spoke to the same effect
Prince Cassano withdrew his proposal as to arbitration
tribunals.
Sir Walter Phillimore observed that the Reports of the
American sub-Committees on the Second and Third Conventions
had met with nothing but praise. As regards the report on tlie
Arbitration Convention, however, he thought it right to mention
( io6 )
that Professor the Marquis Corsi, whose absence all would regret,
had written to express his dissatisfaction at the optimistic tone
of the Report, and to say that if he had been present he would
have urged the necessity of laying down rules as to the sanction
and revision of arbitral judgments.
The Chairman then put the question to the meeting and
the Report was unanimously adopted.
Intervention.
Mr. William Ezra Lingelbach, LL.D., Fellow of Philadelphia
University, then read the following paper, entitled —
The Doctrine of Intervention.
The great obstacle in the way of successful international arbi-
tration is the opposition to the establishment of a sanction. The
existence of a court with authority to enforce its decrees on the
basis of a common right belonging to the Society of States, is
clearly antagonistic to the general conception of independence ;
to acquiesce in a sanction would carry with it the sacrifice of a
great deal of that theoretical independence which is usually
ascribed to sovereign States. Hence, not merely the expediency,
but the very possibility of an international sanction is denied ; in
spite of our best wishes we are unable consistently to deduce a
basis for an international tribunal which would be anything more
than a name. . If, on the other hand, we grant a right of inter-
vention on the basis of a group right, that is, on the higher rights
of the community of States as opposed to the individual political
unit, the creation of a sanction as the only means of directing its
exercise is the logical outcome. But precisely at this point we
encounter the difficulty; most commentators are unwilling to
allow such a right Even to speak of a doctrine of intervention
is absolutely incompatible with the views of a certain class of
publicists, to whom the only consistent doctrine of intervention is
a doctrine of non-intervention.
By intervention is meant the interference of a State, or group
( 107 )
of States, in the affairs of another State, for the purpose of
compelling it to do, or refrain from doing, certain acts. Its
essential characteristic is force, either open or concealed ; simple
mediation, or even a formal protest, unless there is present the
idea of enforcing the demand, does not constitute intervention.
There must exist, behind the interference, a determination to
impose a particular line of action upon the State in question. To
speak of different kinds of intervention, as does Calvo, " selon
les formes sous lesquelles elles se produisent," or to make a
careful distinction between intervention in the mtemal affairs of a
State and intervention in its external relations seems unnecessary ;
all questions relating to conditions under which intervention as
between different States may take place being covered by the
principles applicable in the more complex case of intervention in
the internal afiairs of a single State. ^
But the difficulty in regard to intervention is not to determine
what it is; upon that point there is practical unanimity. The
problem is rather, first, to determine its place in a system of
international law, and second, to discover the rules governing its
exercise. Is it to be regarded as a legal function in the nature of
an act of international police, deriving its authority from the
rights of the Society of States, or is it prim& facie illegal, an
invasion of that right of independence so long extolled as the
highest of all international rights ?
I need scarcely say that the whole subject is still in an extremely
unsatisfactory and unsettled state. It is the most backward of
all the branches of international law ; the views of writers show a
deplorable lack of uniformity ; from Grotius to the modems there
are almost as many opinions on the subject as there are authors.
The reason is found to some extent in the conservatism that
marks the progress towards the codification of international law
OQ all questions of a political character. To a much greater
extent, however, the cause lies in the peculiar nature of the
conditions with which intervention has to do. More than any
other phase of the law of nations, it is concerned with the higher
^ Hall, ' International Law,* Part II. chap. viii.
( io8 )
political interests of States ; it belongs entirely to that field of
international intercourse which our hosts have so aptly described
by the phrase, " La haute politique."
Consequently there has been less harmony, less uniformity, in
the practice of intervention. Weighty political reasons have
tempted States to break with consistency and justice; their
actions at one time are often quite out of accord with their
attitude at another. Too much stress, however, should not be
laid on these facts. It must not be forgotten that while there are
considerations of great importance obstructing the way for the
development of a uniform practice, there are equally powerful
and constantly increasing factors co-operating towards regularity.
If, therefore, in every other branch of international law we base
the doctrine on precedents established by the practice, I see no
adequate reason for abandoning the historic method when we
come to intervention. The position recently advanced by an
English publicist that, " On this subject ... the facts of inter-
national intercourse give fto clue to the rules of international
law," ^ seems to me quite extreme. I do not believe that the
only means of arriving at the doctrine is by a process of deduction
from certain theoretical principles laid down as fundamental to
the existence of international society. To approach the subject
entirely from the standpoint of the independence and equality of
States lays too much emphasis on the rights of the individual, and
loses sight altogether of the rights of society. " Chaque nation
a ses droits particuliers ; mais TEurope a aussi son droit; c'est
Tordre social qui le lui a donn^," ^ was the decision of the Powers
at the London Conference in 1831. Again, whatever may be
said in favour of the deductive and a priori method from the
ethical standpoint, from the legal and historical point of view it
must always remain unsatisfactory. It proceeds from ideals
rather than from facts ; from the standpoint of what ought to be
rather than from what is. States to-day do not base their action
on innate ideas of right and wrong, or upon precepts deduced from
* Lawrence, * International Law/ § 75.
' Martens, Kccueil Nouvtau^ tome x. p. 199.
( 109 )
considerations of absolute rights antecedent to custom and law.
They are guided rather by precedents and rules which can be
shown to have been followed by all or most of the States.^
This is true of intervention as of other phases of international
intercourse. From a study of the practice, the results of which
have appeared in outline elsewhere, but which the scope of this
paper must preclude entirely, I am of the opinion that the " voice
of history " on this question is by no means so discordant as is
claimed by some. The numerous cases of intervention may all
be conveniently and logically grouped according to the particular
couditions that called them forth. Certain conditions and acts
have been regarded by States as just grounds for intervention,
and as a result a fairly consistent line of precedents has been
established. Some are in accord with our present-day standards,
others are not Thus States have claimed a right to inter-
vene : —
1. To prevent being attacked.
2. To preserve the balance of power.
3. To maintain and establish political institutions.
4. To prevent intolerance and anarchy.
5. To enforce reparation for injury to life and property and
justice to aliens.
6. To enforce treaty rights and obligations.
Not all of these have continued to be regarded as valid grounds
for intervention. Several are so out of harmony with the thought
and practice of the age that they have been entirely abandoned.
To determine upon these, and to discover from the practice
which ones have shown an increasing vitality in serving as a
basis for the development of precedents and custom, is too
difficult and complex a task for me to attempt in this paper.
My object is rather to consider the character and place of inter-
vention in its relation to other questions of international law, not
to discuss the grounds that serve, or have served, as a basis for
its exercise.
* Westlake, 'Chapters on International Law/ chap. iii.
( "o )
If we look for the legal foundation for the practice of inter-
vention, we must bear in mind the essential nature of law. Law
is the sum total of all those settled customs, established prece-
dents, official ordinances and legislative enactments that have
grown up and been established for the orderly settlement of
personal and property relations. In other words, law is the
established order of a political society. By the same reasoning
we may say that international law is the sum total of all those
settled customs, precedents and international rules which have
grown up and been established by the larger society of States for
the orderly conduct of international relations.
Nor must we lose sight of the legal essence of international
law because of the difference in sanctions. National law has
provided regularly appointed and disinterested agencies for the
determination and enforcement of the rules governing the indi-
vidual members of the State. Not so with international law.
There are no regularly appointed tribunals and agencies to
impose sanctions and to enforce obedience. There is no
organized authority. Nevertheless, there is a sanction which,
though less certain and less favourable to a just determination, is
still possessed of all the force which national political organiza-
tion can give. This sanction, owing to the absence of organized
authority, depends on the political power of the individual nation
or nations, which is set in motion for the enforcement of inter-
national law.^ In other words, the work of police must be done
by members of the community who are able to enforce the rules.
Primarily, the rules of international law may be said to be
directed toward the orderly and peaceful conduct of international
affairs. So long as nations abide by the rules of orderly conduct,
conflict will not arise. When they deviate from the rule the
sanction may be applied, and resistance thereto brings war.
Intervention occupies a place intermediate between the breach of
the law and the application of the sanction. It may be said to
^ By sanction is meant both the penalty and the power necessary to enforce.
The three essential elements of law being the rule, the obligation and the
sanction.
( I" )
have grown out of the practice of nations in their efibrts to secure
a respect for international right without war. It always carries
with it the ultimatum of war in case of resbtance. Intervention,
therefore, may be considered as one of the steps in the enforce-
ment of international rights.
The force of the sanction to international law has been such as
to inspire the individual nations with a wholesome respect for its
niles. The effect is to cause the several nations to subordinate
their own actions to the larger interest Self-restraint becomes
one of the leading factors in international relations. This self-
restraint is based, first, on the principle of self-interest which each
nation has in the maintenance of orderly conduct and a definite
practice; second, on the fear of consequences arising from a
violation of the rule, and third, on the force of national ideals
and a law-abiding spirit which are basic to the consensus of inter-
national opinion. As in national law, it is the certainty of the
operation of the rule, the power of enforcing it, and the cost of an
infraction, that assures its observance on the part of those in
whom the spirit of legality is absent
In most branches of international law, the questions involved
are not sufficiently weighty to tempt governments to self-assertion
and defiance of the sanction. The matters in dispute concern
private interests, consequently the line of action of the different
States has been more uniform; precedents have been more
readily formed, and the growth of a consensus of opinion and the
establishment of a sanction has been more constant and regular.
But in the cases where intervention is involved, the questions are
usually of fundamental importance, often such as concern the very
existence of the particular States. Therefore the development of
precedents and rules has been very slow. They have frequently
been the result of the supremacy of one State or group of States
standing for particular principles, or of a compromise between
the representatives of conflicting principles and interests. Inter-
vention has depended more on political policy ; on the prevailing
thought and institutions of different periods of history. Rules
and precedents regarding intervention, that were once valid, differ
( I" )
widely from our present-day standard. For example, when the
Continental Powers intervened in behalf of monarchy in the early
years of this century, the conditions existing in the countries
against which intervention was undertaken, and the acts of their
citizens, were honestly looked upon as infractions of the rights of
other States. That we no longer consider such acts and con-
ditions just grounds for intervention does not afifect the principle.
In common law many acts that once called down upon the
offender the severest punishment, are to-day not even regarded as
misdemeanours. Old ideas have been sloughed off. Similarly
acts and conditions once considered criminal and inimical to the
Society of States in international law, calling for the exercise of
the high proceeding of intervention, are no longer regarded as
such. It must be borne in mind that the doctrine and practice of
intervention have gone through a process of evolution; that
causes looked upon as justifying intervention at any period may
be entirely out of accord with those held in another period, and
yei be historically perfectly legal.
Nor should the fact that the right of intervention has frequently
been made to serve as a cloak for wanton acts of aggression and
abuse of power, be allowed to stand in the way of an impartial
judgment of the facts. The abuse of a principle or a rule does
not prove it to be essentially good or bad That States at
different periods of their history have greatly abused their power
of police by trampling on the rights and liberties of their subjects
does not lead writers in national law to renounce the right of
national society to exercise police powers. Yet this is precisely
what is done in international law. The power and right to
enforce its laws is basic to the existence of organized society, and
on this principle an international code for the Society of States
must rest
Nor does the history of international intercourse in regard to
intervention show that States have acted on any other basis.
Not only has the right of intervention been asserted repeatedly
and continuously in treaties and diplomatic utterances by
individual States with the tacit consent of the others, or by all or
( it3 )
roost of them acting in concert; but it has been consistently
followed in practice. There individual rights do not appear
in practice as the ne plus ultra in international law any more
than in national law, and the assertion that intervention can have
no legal status, because it is antagonistic to the highest of all
international rights, namely, the right of independence, is
therefore based upon a false assumption and contrary to the
attitude of the leading nations. The practice of nations
indicates that they have proceeded from a different assumption ;
they have assumed that the Society of States has certain rights
which each State is bound to respect. Their action is based on
the principle that there are certain obligations which States owe
to each other, and which no State is at liberty to violate : that
there is a power residing outside the individual State superior to
it, which assumes to dictate what the individual State may or may
not do in its dealings with others ; that there is a right superior to
national right, and which in a measure controls national will, and
that the practice of intervention is a means admissible for
enforcing these higher claims against the individual State. Else,
how can we explain the consistent assertion of the rights of
Europe as opposed to the claims of particular States, the frequent
joint interventions, and the modem practice of pacific blockade ?
Instead of proceeding from the theory that acts of intervention
are wrongs — infractions of right — nations have uniformly claimed
to act as of right ; and that in each case the exercise of what
they esteemed the right of intervention has been undertaken either
as a means of preventing what they considered wrong, or as a
remedy for what the age interpreted as a violation of international
obligations.
There has been, however, no international tribunal for the
adjudication of such cases. Remedial rights in international
affairs can only be enforced through the machinery of individual
national governments. This has usually been the political
department of the government suffering from a real or supposed
breach of international obligation. It is not surprising, therefore,
that the decisions of this tribunal bear a strong political
1
( "4 )
colouring ; and have in fact, as was stated above, proceeded from
the political conditions and ideas of the time.
During the period from 1648 to the French Revolution the
idea that the monarch was the State pervaded political thought
Consequently it was only natural that the cases of inter\'ention
of that era should nearly all be directed against the undue
aggrandisement of certain dynasties. A doctrine of the balance
of power with respect to the territorial possessions of the monarch
grew out of the identification of the territory of the State with the
personal domain of the sovereign. Again, the widespread
religious controversy which formed one of the most important
features of the history of Europe during this period was strongly
reflected in the practice of intervention, and shows even more
clearly the intimate dependence of the doctrine and practice upon
economic and political conditions. Nearly all of the cases of
intervention of the time were undertaken either on behalf of the
balance of power or on religious grounds.
Between the outbreak of the French Revolution and the
revolutions of 1848, the doctrine of the balance of power was
strongly reasserted in the adjustment at the Congress of Vienna,
but the greater number of cases of intervention during these years
were based on a different principle. They were carried out in
the interests of certain forms of government and political
institutions. Here again the peculiar political condition of the
time formed the basis from which intervention proceeded.
A conflict between the democratic ideals of society and
government promulgated by the revolution, and the absolutism
of the old regime^ marks the entire period. The strong reaction
afler the Napoleonic wars swept all before it, and found
expression in a doctrine of intervention based on the principles
of the Holy Alliance. For nearly fifteen years the doctrine thus
established formed the basis for the action of the Continental
Powers. England, being less affected by the reaction, protested,
but single-handed she could do nothing. When, however, the
United States joined her in forbidding the application of the
Continental doctrine in the Spanish-American Colonies, she was
( "5 )
successful. The commercial interests of England, joined with
the democratic ideals of the United States, created a force
sufficiently powerful to assert itself against the established rule.
With the July revolution of 1830 democracy triumphed in France
and this country immediately passed over to the side of England.
This brought about an equilibrium of power between the
conflicting tendencies, which had before been absent As a
result we find the old principle of intervention on political
grounds yielding rapidly to the new doctrine of non-intervention,
which was in harmony with the rising Liberalism and the new
ideals. 1
With the triumph of Liberalism in the middle of the century a
new era began. An intense national spirit swept over Europe,
which, combined with the momentous changes of the industrial
revolution, left a lasting mark on the political system of every
State. New ideals dominate the modem period. The form and
content of national institutions has been changed. As a result,
the doctrine and practice of intervention have undergone pro*
found modifications. The growth of large States shifted the
basis for the idea of the balance of power. The rounding out of
Italy and Germany abolished conditions which had constituted a
hot-bed for breeding intervention. Conditions of equality were
established among a group of large nations, which, together with
the advent of the United States as a strong neutral Power, is
working rapidly towards the establishment of a snnction.
Economic and commercial interests, more strongly even than
political forces, are tending to foster a spirit of legality in inter-
national relations. The results of this are particularly manifest
in the frequent actions in concert, and in the attitude of the group
of large Powers towards the smaller States. Not only are these
often put in tutelage and relieved of many of their onerous
* Here the forces operating towaid the development of law, international as
well as national, are clearly seen. Jost as soon as there is sufficient power
hack of certain ideals or demands they become law ; rules governing and
determining actions. For example, a certain class or organisation may have
sufficient influence to secure legislation highly favourable to its peculiar
iaterests, though the majority of the people are not at all in favour of it.
I 2
( ii6 )
international duties, but again and again the large Powers, either by
pacific blockade or in some other manner, intervene in their affairs
in order to enforce the fulfilment of international obligations.
These and other recent developments all show that inter-
vention is becoming more and more recognised as the legal
means by which the society of nations enforces its rights. This
is true whether it is carried out by several States or by an
individual State, acting in accordance with precedent and the
consensus of international public opinion, although the modem
practice shows a strong tendency towards action in concert
Intervention^ therefore, instead of being outside the pale of the law of
nations and antagonistic to it, is an integral and essential fart of it ;
an act of police for enforcing recognised rights, and the only means,
apart from war, for enforcing the rules of International Law.
W. K LiNGELBACH.
University of Pennsylvania.
Abolition of Slavery.
Mr. Alexander read the following paper: —
Abolition de l'Esclavage — Progr^s depuis la Conference
DE 1895.*
A notre Conference de Bruxelles, en 1895, j'ai prdsent^ un
rapport, d'apr^s les indications foumies par feu Mr. Teall, secre-
taire-adjoint de la Soci^t^ anti-esclavagiste de Londres, sur les
progrfes accomplis en vue de Tabolition de Tesclavage et de la
traite des noirs. Ce sujet avait d^jk fait Tobjet de plusieurs
rapports et discussions aux Conferences de notre Association,
notamment k Milan en 1883. Croyant qu'il serait int^ressant
pour les membres de TAssociation de se rendre compte des
progr^s accomplis depuis cinq ans, j*ai demand^ k Mr. Travers
Buxton, aujourd*hui secretaire de la Soci^td, une nouvelle chronique,
demande qu'il s'est empress^ d'accueillir. C'est done k son
obligeant concours que je dois les principaux details de ce rapport*
> An English translation of the greater part of this paper has appeared in
the Anti-Slavery Reporter, Sept.-Oct., 1900.
( "7 )
Protectorat d£ Zanzibar.
En 1895, la Soci^t^, ^inue par les faits qui lui dtaient rapport(f8
sur r^tat des esclaves dans le protectorat anglais de Zanzibar,
envoya Mr. Donald Mackenzie, qui avait acquis une exp<^rience
considerable dans une autre region de TAfrique, faire une
esqu^te k Zanzibar et dans les contrdes environnantes. II visita
les lies de Zanzibar et Pemba, le port de Mombasa, les colonies
allemandes et italiennes, et constata partout un 6taX de choses
lamentable. La traite des noirs ^it encore considerable ; leur
exportation avait lieu de plusieurs points de la c6te de PAfrique et
des lies, et les autorit^s europ^ennes, sauf quelques honorables
exceptions, s'occupaient peu de Farrdter.
En 1896 la mort du Sultan de Zanzibar a iti suivie de
Tapparition d'an pr^tendant qui voulait r^pudier le protectorat
anglais. Son palais a 6t6 bombard^, il s'est enfui dans le
tcrritoire allemand, et son rival, Hamud, approuv^ par le
gOQvemement anglais, doit k celui-ci d'occuper le tr6ne. Mais
le gouvemement protecteur ne s'est pas servi de raffermissement
de son autorit^ qui a 4t6 le r^sultat nature! de cette manifestation
de son pouvoir pour mettre fin h. Tesclavage. Quelques mois
plus tard, la Soci^t^ des Amis (Quakers) envoya k Zanzibar
et Pemba une mission d'enqu^te qui avait pour r^sultat la fonda-
tion dans cette demi^re lie d'une mission permanente ayant le
triple but d'dvangeiiser les indigenes — aucune mission chr^tienne
n'existait alors, mais deux autres, une anglicane et une catho-
lique, Tout suivie depuis— de leur apprendre la dignity du travail
et de sauvegarder les int^rets des esclaves liberds. Car d^jk
avant la fondation definitive de la premiere de ces missions, en
avril 1897, le Sultan de Zanzibar avait ddcrcte Tabolition de
retat legal de Tesclavage dans les deux lies. Ce decret etait le
resaltat d'une agitation en Angleterre, oh les hommes de tous les
partis trouvaient scandaleuse la persistance de I'esclavage avec
toutes ces lamentables consequences morales, ou plutot immorales,
dans un protectorat britannique. Le decret exigeait que, pour
propter de ses dispositions, les esclaves comparusSCnt devant des
( "8 )
tnagistrats, et que, k moins de preuve qu'ils avaient ^t<^ introduits
dans le protectorat contrairement aux d^crets ant^rieurs inter-
disant la traite, une compensation fi^t accord^e h, leurs mattres
par r^tat de Zanzibar, De Ik des difficult^s pratiques Xxhs
s^rieuses pour T^mancipation effective. Jusqu'k la fin de Tannee
1899, k peu prfes io,coo esclaves, hommes et femmes, ont re^u
leurs certificats d'^mancipation, sur une population d'environ
150,000 esclaves. Le progrfes est sans doute sensible, mais il est
loin d'etre satisfaisant
Le territoiie sur la c6te de TAfrique soumis au Sultan de
Zanzibar avait 6t6 \ou6 par lui k une grande soci^t^, la British
East Africa Company, qui ne r^ussit pas k faire ses frais et vendit
enfin ses droits au gouvemement de la Grande Bretagne. Depuis
lors, ce territoire a 6t6 administr^ par des fonctionnaires nomm^s
directement par le gouvemement anglais, bien qu'ils exercent
leur autoritd au nom du Sultan. L'influence anglaise est, par
consequent, encore plus directe que dans les ties, oli le gouveme-
ment, bien que compost presqu'uniquement de sujets britanniques,
relive cependant du Sultan, sous le controle du rdsident-g^n^ral
anglais. Le ddcret de 1897 n'a aucune application k ce territoire
de la cote, mais plusieurs d^crets ant^rieurs des Sultans, ayant
pour but la repression de la traite, ont limits Tdtendue de
Tesclavage, tout en laissant subsister Tinstitution meme. Le
gouvemement anglais d^clara en 1897 k la chambre des com-
munes qu'il ^tait trfes desireux d'abolir Tesclavage aussitdt que
possible, mais jusqi k prt^sent Tabolition a 6t6 toujours ajoum^e.
Uaction de certain^ ionctionnaires anglais, en obligeant les
missionnaires dans ce territoire de rendre k leurs anciens maitres
des esclaves qui s'tftaient r^fugids chez eux, scandalisa le public
et donna lieu k une discussion k la chambre des communes.
Cette conduite fut ddsavouce par le gouvemement, qui envoya
I'ordre formel aux fonctionnaires de ne pas intervenir pour aider
les propri(^taires. Mais il fut decide dans le cas d'une esclave
fugitive, dont la liberte ^tait reclamde devant le tribunal local
de Mombasa par I'e'veque Tucker en 1898, que les fonctionnaires
anglais doivent appliquer Ja loi musulmane, meme en reconnaissant
( "9 )
Tesclavage, et cette decision a re^u Tapprobation da gouvemement
anglais. Dans le cas particuliery cependant, Tesclave fut lib^r^
comme ayant ^t^ import^e dans le territoire de Zanzibar en
contravention d'un ddcret de 1876. Plus tardy au mois de juin,
Tadministrateur de Mombasa ordonna le retour It leur ancien
mattre de trois esclaves fngitifs.
II me semble que dans toute cette controverse le gouvemement
anglais et ses agents dans les territoires du protectorat de
Zanzibar ont perdu de vue le principe pos^ par d'^minents juges
anglais et reconnu par de nombreux actes intemationaux, k
partir du Congrfes de V^rone, que Tesclavage est une institution
contraire au droit naturel et que par consequent le respect de la
loi locale ou des coutumes musulmanes ne peut jamais imposer
aox autorit^s d'un pays soumis k une administration chr^denne
le devoir d'appliquer une loi contraire aux pr^ceptes de leur
propre religion et de leur propre morale. II faut se rappeler
aussi que Fislamisme ne prescrit nullement Tesclavage; au
contraire, le Koran envisage Taffranchissement des esclaves
comme un acte mdritoire. D'aprbs une d&ision de la supreme
autorit^ judidaire des musulmans de Flnde britannique au
commencement de ce sibcle, la detention par des mahom^tans de
leurs co-religionnaires comme esclaves est contraire k leur propre
religion ; et I'exemple du bey de Tunis abolissant Tesclavage en
1840, comme acte de pi^t^ et justice, est bien fait pour encourager
dans cette voie les gouvemements chrdtiens de pays musulmans.
Madagascar.
En septembre 1896, quelques mois avant le d^cret tiroide
dict^ par le gouvemement anglais au Sultan de Zanzibar, un
d^et bien autrement d^cisif avait 6t6 promulgud par le
gouvemement frangais dans la grande ile de Madagascar. A son
^temel honneur, le r&ident-g^ndral, Monsieur Hippolyte Laroche,
coQvaincu de la n^cessit^ de supprimer cette profonde immorality
qu*est la propridt^ d'un horame dans la personne d'un de ses
semblables, solUcita et obtint de ses sup<5rieurs k Paris la permission,
( 120 )
avant de se d^mettre, d'abolir Tesclavage, sans compensation.
Les nobles Hovas tenaient h. leurs esclaves, mais ils se soumirent,
sinon sans murmures, au moins sans aucune manifestation
ouverte, au d^cret, dont ils reconnurent sans doute la justice.
Chemin de Fer de l'Ouganda.
En 1895, le gouvemement anglais pr^sid^ par Lord Roaebery
avait d^cid<f d'entreprendre, aux frais de la m^tropole^ la con-
struction d'un chemin de fer pour relier le protectorat d'Ouganda
avec la cote. Cette construction avait 6i6 appuytfe par la
Socidt^ anti-esclavagiste comme devant contribuer puissamment k
Tabolition de la traite. La d<^cision du gouvemement de Lord
Rosebery fut maintenue par celui de Lord Salisbury, et la con-
struction est aujourd'hui trbs avanc^e. £lle a ^t^ faite par le
travail libre exclusivement ; les predictions de ceux qui disaient
qu'il serait impossible de trouver des travailleurs h. gages
raisonnables ont 6t6 d^menties par T^v^nement. L'exp^rience a
prouv^ une fois de plus qu'k condition de les bien traiter, de
leur donner un salaire convenaWe et de payer les gages avec
exactitude, iln'est pas difficile d'accoiitumer les indigenes africains
h travailler pour gagner leur vie. Dans TOuganda meme
I'esclavage ^tait ddjk abolie, sous Tinfluence morale des missions
chr^tiennes, avant I'^tablissement du protectorat anglais.
Egypte.
En Egypte, Tadministration a accompli de grands progrfes
pendant ces cinq ann^es. J*ai eu le plaisir, il y a quinze jours,
au Congrfes anti-esclavagiste de Paris, d'entendre un membre
distingud de la colonic fran^aise en Egypte rendre hommage k la
mani^re intelligente et ddvoude dont cette administration s'cst
appliqu^e k mettre fin k la traite des noirs. Une nouvelle Con-
vention entre les gouvemement s anglais et ^gyptien, pour le
rfeglement de la question de I'esclavage, a tt6 substitue^e, le
21 novembre 1895, k celle de 1877, qui avait e't^ recoonue
dcfectueuse. La nouvelle Convention a pour objet principal
( "' )
de renvoyer les accusations de ventc d'esclaves devant un tribunal
special de cinq membres, dont deux sent europtfens. Les derniers
rapports de Lord Cromer sur radministration de I'Egypte expri-
ment la conviction que la conquete du Soudan aura pour rt^sultat
la suppression de Tesclavage dans ce vaste territoire aussl La
traite y est dejk interdite et les infractions ^ la loi sont punies
sevferement.
NlG^RIE.
En juin 1897, la Compagnic rojrale du Niger cdlAra Faccom-
plissemcnt de la soixanti^me ann^e du rfegne de la reine Victoria
en promulguant un ^dit pour abolir la reconnaissance legale de
Tesdayage dans tout son territoire. Ce vaste domaine est
devenu, depuis le i*' Janvier 1900, sujet k Tadministration directe
du gouvemement anglais. II y aura, sans doute, beaucoup k faire
avant que Tinstitution de Tesclavage disparaisse en fait des
habitudes et des moeurs des indigenes ; au moins la loi est-elle,
dcsonnais, conforme k la raison et k la justice.
Tripoli, Maroc
Dans ces deux pays musulmans I'esclavage subsiste encore et
la traite continue. La Societd anti-esclavagiste d'ltalie a appel^
Tattention sur Tabus frequent des lettres d afiranchissement
donnas aux esclaves export^s de la Tripolitaine, uniquemcnt
pour les faire passer comme des personnes libres. Dans le
Maroc, les march^ d'esclaves ont encore lien dans les principales
villes, I la porte mdme de TEurope. Ce scandale appelle une
action commune ec vigoureuse de la part des Puissances euro-
pecnes et am^ricaines repr^sentt^es diplomatiquement au Maroc,
pour exiger son abolition.
La Traite Maritime.
Sur la cote orientale de TAfrique cette traite infime existe
encore. Ce sont de petits voiliers arabes qui la font, en dcpit
des lois, enlre les divers protectorats europeens et la cote
( "2 )
dgyptienne, d'un cdt^, et les pays musulmans asiatiques,
TArabie et la Perse, de Tautre. Les captures effectu^es occa-
sionnellement le long de cette cdte prouvent que la traite existe
toujours, et il sera difficile de la supprimer totalement tanl que
I'esclavage subsistera. Les croiseurs anglais occup^s de surveiller
la cdte et d'arr^ter ce trafic se plaignent souvent des abus du
pavilion frangais dont certains consuls frangais permettent trop
facilement Tusage k des marchands arabes qu'ils devraient
connaltre corame suspects. II serait k Thonneur de la France de
r^primer ces abus par des instructions rigoureuses donn^es k ses
repr^sentants consulaires. Le consul fran9ais de Zanzibar
r^cemment nomm^ s*est montrd plein de zble k cet ^gard et pr^t
k collaborer cordialement avec les aucorit^s de ce protectorat
pour la repression de la traite.
Substitutions Modernes.
On pcut envisager avec une certaine confiance la disparition
totale de Tesclavage, m^me dans le monde mahomdtan, qui s'y est
montrd si attach^, dans un avenir assez prochain. Mais les
abus qui sont r^prim^s sous une forme tendent k reparaitre sous
une autre ; Thomme m^chant et fort veut toujours exploiter et
dominer ses semblables. Le travail obligatoire dans les mines ou
plantations, les contrats oppressifs passes avec les Emigrants, les
monopoles des produits principaux de certaines contrdes, le
service militaire impost aux populations indigenes, peuvent
constituer un esclavage ddguisd. La vigilance constante est, eu
ce domaine comme en tant d*autres, le seul moyen de sauve-
garder les intdr^ts de la justice et de rhumanitd— qui sont, en
definitive, les v^ritables int^r^ts du commerce et de la soci^t^
elle-mdme — contre les empifetements de r^goisme.
Joseph G. Alexander.
The Conference rose at 4.30.
( 1^3 )
WEDNESDAY, AUGUST a 2ND.
The Conference reassembled at lo a.m. ; and the minutes of
the previous day's Conference were read by the Secretary, Mr. G.
G. Phillihore, and confirmed.
At the invitation of the President, the Hon. Mr. Justice
BiGHAM, a Vice-President for England, took the Chair.
M. Ernest Deshayes, President of the " Soci^t^ de D<$fense
dcs Int&ats de la Valine de la Seine," read the following paper—
Rouen as a Safe Port.
Gentlemen :
Although the subject is not perhaps closely connected
with the objects of the International Law Association, we would
nevertheless beg the honour of giving you some interesting and
important information concerning the port of Rouen — unfor-
tunately not sufficiently known abroad to the International
Maritime Underwriters and Shipowners ; the former in particular,
as the power lies with them to exclude our port in such charters
as those from Australia and the Califomian ports.
Notwithstanding the great improvements realised within the
last years in the navigation of the Seine, the port of Rouen is still
frequently mentioned as excluded in a certain number of charter
parties and especially in those that relate to the grain trade by
sailing vessels from Australia and California ; this exclusion is
due in a great measure to want of knowledge as to the present
sute of our river and of our port, and we therefore consider it a
duty to bring the matter to your notice.
Owing to a large expenditure on the part of the treasury, this
city, and of the Chamber of Commerce of Rouen, the embanked
part of the Seine, which begins about twelve miles from Havre
Roads, has been deepened and straightened, thus regulating the
( "4 )
course of the river ; moreover, the bore up the river now causes
no inconvenience and is scarcely felL
Between the end of the dykes and Rouen there are many
reaches of great depth where ships of the largest draught can
anchor safely in case of fog or delay of any sort At Rouen
itself there is sufficient depth of water along the new quays for
any ship that can go up the river to remain afloat while
discharging cargo.
The embankments which for many years did not extend below
Tankerville, opposite the mouth of the small river Risle, are
being rapidly carried on and will soon reach the vicinity of
Honfleur.
It is almost needless to add that the channel is carefully
buoyed ; soundings are taken every day separately by the
engineers in charge of the Seine, and by the pilotage service.
The chief Pilot Master, a naval officer, appointed by the Marine
Minister, has strict control of the pilots under his orders, and it is
he who issues a tabular list of the draughts authorised for
admittance into the Seine.
For some years past the Seine has been thoroughly lighted, and
ships can go up as easily and as safely by night as by day. It
requires from six to seven hours for a steamer to reach our port
from the sea, having the benefit of the tide the whole way;
powerful tugs are available for sailing vessels and take about the
same time to make the trip.
The draught of water varies according to the state of the tide,
and ships drawing as much as 23 feet have reached Rouen
without any difficulty or mishap; we might mention that the
four-masted tank vessel Quevillyy drawing 22 feet 6 inches, is
chartered for regular voyages to Rouen, and has made thirteen
successful trips from Philadelphia and is now daily due on the
fourteenth voyage.
With regard to the possibility of delay occurring in Havre
Roads for want of sufficient water to enable the vessel to proceed
up the river immediately on arrival, may we suggest the insertion
of the clause, ** Lay-days to commence forty-eight hours after
( "5 )
ship's arrival in Havre Roads/' this to apply especially to charters
from Australian and Californian ports, and whatever time, if any,
lost waiting beyond the forty-eight hours, to be deducted from the
days provided by charter for discharging — usually custom of the
port
In this paper, which is necessarily restricted within certain
limits, we have confined ourselves to a plain and precise
statement, but we court inquiry and shall be happy to give any
supplementary information that may be asked for.
Before concluding, permit us to say that since the beginning of
January of this year something approaching 1500 vessels have
come up the Seine on draughts of water varying from 17 feet to
24 feet, and without having a single case of stranding or collision
to record, either on the upward or downward voyages, notwith-
standing the foggy and unfavourable weather of the past winter
and the continual active traffic on the river. Among these
vessels are to be found the four-masted ship Qutviliy ; tank
steamers such as belong to Messrs. Hunting & Son, of
Newcastle, carrying upwards of 6000 tons and drawing from
23 feet to 24 feet of water. Furthermore, we can mention the
arrival at Rouen on Thursday last, on an average tide, of the
S.S. AureolCy drawing 22 feet 9 inches, with 6000 tons of
petroleum in bulk; also, on the following day, the cargo boat
Cymadoue^ of 6000 tons dead weight, and drawing 22 feet
6 inches.
The navigation of so many vessels up and down our river,
handled by thoroughly competent pilots, has become a very easy
matter indeed ; and, as already mentioned above, no accident or
mishap whatever having occurred to any of these 1500 vessels
referred to, does this not tend to prove indisputably the perfect
security of our river ? Could the same be said of many ports
enjoying a better reputation ? We question it very much I
Rouen^ 22nd August, 1900.
M. Waddington : Gentlemen, I think that the paper which
M. Deshayes has just read will have thoroughly enlightened you
( "6 )
with regard to the facilities which the port of Rouen offers, and,
therefore, I need not trespass on the purely technical part of the
subject, because you can convince yourselves, by the sight of all
the large steamers which are at the present moment in the harbour
or in the petroleum basin, what is the draught of the vessels we
can receive here. We think, however, we have a right to appeal
to your Association on general grounds, and on the ground of
justice with regard to our port We do not think fair play and
fair treatment have been accorded to our port of Rouen. As you
know, gentlemen, certain associations draw up rules for charter-
parties. Those rules are certainly not obligatory, but they
exercise a very great moral influence on the trade as regards
underwriters, and it is a fact — a very disagreeable fact to us — that
in some of those model charter-parties Rouen is excluded ; for
instance, rules are laid down for freights to different English ports,
and to Continental ports " from Bordeaux to Hamburg, Rouen
excluded" I quite allow that this exclusion is not a general one ;
it only prevails in about three or four cases at the most ; but still
it is very invidious, and we feel that it is due to antiquated notions
about the port of Rouen. I can quite understand that such a
rule might have been adopted, say twenty years ago, but I do not
think it is fair that it should exist under present circumstances. I
will give another instance of exclusion which seems to me
particularly unfair. If you look through charter-parties you will
see Manchester is excluded. I do not know whether there are
any representatives of Liverpool here, but I quite allow if I
were a Liverpool man I should object, to a certain extent, to
the rivalry of Manchester ; but really, when we look at matters
upon broad grounds and in a liberal way, we cannot put up with
that sort of thing, and I think it is utterly unfair for a Liverpool
man to try and exclude Manchester because it may interfere
with the trade of Liverpool. I do not say the Liverpool people
intend it, but the fact remains that you will see in some charter-
parties Manchester is excluded. It is on those general grounds
that I think you might call the attention of the people who draw
up these charter-parties to the subject. I may say that the Rouen
( "7 )
Qiamber of Commerce has already been in correspondence with
a good many of the English shipping agents on the subject, and I
believe there are here present one or two gentlemen from London
or Liverpool with whom interviews took place, and the matter was
talked over and some details gone into ; but then, as often occurs,
the subject dropped. We should very much hke it to be taken
up again.
I do not wish to trespass longer on your time. I know you
have subjects of much more general interest to discuss, but I hope
yoQ will not think it unfair on the part of the Rouen people to
profit by the presence here of so many gentlemen of authority in
this connection by calling your attention to this matter.
Mr. T. V. S. Angier (representing the Chamber of Shipping of
the United Kingdom, London) : If I am not out of order, I might
make a few remarks which perhaps would tend to satisfy M.
Waddington and the reader of this paper. I think it will be in
the minds of several gentlemen present that some years ago we
came here on a deputation with the object of coming to some
agreement on points at issue with regard to difhculties which had
arisen in connection with this port. We had a long conference
here, and there were several points brought forward. One of the
mam points was the question of the lay-^lays, and, unfortunately,
we could not come to an agreement on that point I am speaking
as the Vice-Chairman of the Documentary Committee of the
Chamber of Shipping, who have practically the duty of drafting
charter-parties for the various trades of the world, in which labour
we are still engaged, and it was really in relation to this work
that we came here to endeavour to come to an agreement as to
the port of Rouen. I think we split on the question of lay-days.
Delays had occurred and had been so serious in the case of
vessels arriving at Havre, and being stopped there for a very
considerable time before getting to the port, that it involved very
heavy loss to the shipowners. We broke down, as I said, on that
particular point, and it was mainly on that account the resolution
was come to to make this a port of exclusion in the ordinary
( 128 )
stipulations of the charter-party. I think you will all admit that this
question of lay-days naturally affects the rate. Having disagreed
on that point, we left it open in every case for a special bargain to
be made where Rouen was concerned, which appeared to us a
just and easy means of settling the question, because it always
brought the question up, and in the end the exclusion did not
work as a real exclusion, but only resulted in an extra bargain
having to be made for the price to be paid in order to come to the
port ; and I think in practice you will find, whenever the destination
has been Rouen, there has never been any difficulty in a merchant
obtaining a ship by paying a slight extra freight in consideration
of the difficulties the owner knew and foresaw he would encounter,
and the loss of time involved.
Certainly, since those days, there has been a great improvement
in this port The information we have beard to-day is not
altogether new to us. We are fairly alive and attentive to the
progress of all ports in the world. It is no news to us to hear of
these great improvements which have been described to-day, and
the market opinion of Rouen among shipowners is a very
different opinion now to what it was when we came over here
on that former occasion. I may say the market opinion and the
price of Rouen to-day, so to speak, comes very little — if any —
above Havre, or at any rate Hamburg, and in many cases you
may get a ship cheaper for Rouen than for Hamburg. Accepting
the information given in M. Deshayes* paper, and considering tie
moderate request made by him that the subject should be recon-
sidered, I can promise for my own part, at any rate, that in any
drafting of future charter-parties the question will be taken very
favourably into consideration.
M. Waddington : I did not in my remarks enter into the
question of lay-days because I considered it was a technical
point, and I thought, perhaps wrongly, that it was not within the
domain of the Association to go into details which might involve
a discussion of some length. The question of lay-days is very
naturally an important one, and I quite understand it has been
( "9 )
put forward, but I am not aware that the Rouen authorities have
ever denied the possibility of coming Co an agreement on that
point When I had the pleasure of seeing some of the gentlemen
in London on the subject I perfectly admit we had already said
something about the lay-days counting from the arrival of the
vessel in the Havre roads, which would obviate the objection
made just now, and the question of delay from neap tides. What
we ask from this Association is a general resolution calling
attention to the objections made against the exclusion of Rouen,
and on that point I differ from the honourable gentleman who
spoke last, because I think that exclusion is really a bar to
Rouen. As the charter-parties drawn up are a sort of model
which can be followed or not followed as the parties like, I quite
allow it does not prevent vessels coming to Rouen at special
rates, but still it is a sort of announcement made to all parties
concerned beforehand that they had better not come to Rouen.
If special charges are to be made in the case of Rouen of course
it will diminish the objection, but when you have, in a model
charter-party which most people accept, Rouen excluded, what
does it mean to the world in general ? Why, that Rouen is a
dangerous port and it is a great mistake to send vessels there.
If such an exception is made the overcharge is so excessive — I
know cases where it is 5J. a ton — that it is altogether out of
proportion to the real state of things and is practically prohibitive,
to the detriment both of the importer and of the port
M. Deshayes : We want the Association to take notice of the
improvements in our port One speaker has said that some
yean ago there was detention of vessels in the Havre roads, but we
have been making embankments and deepening the channel and
we have a well-organised service of pilots, so that we have no
accidents. We want no favours, but only to be treated in the
same way as other ports similar to our own. We want to be
treated and known as we deserve to be. If you put an exclusion
in a charter-party of course it acts as a bar to Rouen. As we
now receive large ships of the largest draught we consequently
( no )
wish and hope to be treated as a port equal to others. This year
we had one sailing ship from Australia which was ordered here
and the extra charge made was 3^. Sd. a ton, which you will
admit is putting an obstacle in our way. As the Government
and the Chamber of Commerce have been making embankments
and deepening the channel of the Seine so as to get over all
difficulties, I ask that we should be treated as we deserve and
wish to be.
M. Waddington : May I profit by the occasion to say that
the Chamber of Commerce will be most happy to afford the
Association an opportunity, if you will do us the honour, of
visiting the port. I think, after the observations which have
been exchanged, a visit of that sort would be most appropriate.
After talking the matter over with the Chairman and some of the
Members of the Council, we think such a visit might be paid on
Friday morning at half-past nine o'clock if that would be a
suitable hour, when a tug will be ready by the quay side, and we
hope you will take advantage of the excursion.
The Chairman : I think, gentlemen, the invitation M. Wad-
dington has been good enough to extend to us will be accepted
most heartily by those present.
I am given to understand, what I can well believe, that nearly
everyone present in this room understands English and probably
speaks it a great deal better than some of us speak French, and,
therefore, we do not propose to go through in French what has
already been said in English, but to proceed with the business of
the day. I am going to ask M. Waddington to be good enough
to move a resolution following this discussion, which will probably
express the views of the meeting.
M. Waddington : This is the Resolution, gentlemen : —
"Having regard to the facilities now afforded at the Port of
Rouen for the rapid and safe discharge of cargoes, it is desirable
that the conditions of contracts, whether charter-parties, policies
of insurance^ or others, relating to the carriage of goods to and
from the port, should be as far as possible similar to those
( »3i )
contained in contracts relating to the carriage of goods to and
from other ports of Western Europe."
Vou will see that reserves the questions of detail, but we might
add the words, " added to the recent improvements." I under-
stand according to the rules of the Association the resolution
should not be put to the vote at once, and it would be but
natural that notice shouM be taken of the resolution after the
proposed visit to the port has taken place, when you will be able
to judge for yourselves, and that would be better than any
argument we could put forward.
The Chairman : I think it would be better that it should be
done now, and I will ask M. Waddington to move the resolution
and M. Deshayes to second it, if he will be good enough to
do so.
M. Waddington : Perhaps on Friday, when your proceedings
will end, we shall not have such a full meeting of members as we
have to-day, and, therefore, it would perhaps be better to vote on
the resolution at once, if you will be good enough to do so. At
the suggestion of some of the gentlemen present I have added to
the resolution, " Having regard to the great improvements lately
made in the Seine and the facilities now afforded," and the
resolution now stands as follows : — ** Having regard to the great
improvements recently made in the estuary of the Seine and to
the fecilities now afforded at the Port of Rouen for the rapid and
safe discharge of cargoes, it is desirable that the conditions of
contracts, whether charter-parties, policies of insurance, or others,
relating to the carriage of goods to and from the port should be
as far as possible similar to those contained in contracts relating
to the carriage of goods to and from other ports of Western
Europe."
M. Deshayes : I second the resolution which has been pro-
posed.
Mr. T. R. Miller (representing Chamber of Shipping of
United Kingdom): I have great pleasure in supporting the
K 2
( 13* )
resolution, but I am afraid several of my colleagues and possibly
myself may not have the privilege of attending on Friday, owing
to other duties which call us away from Rouen sooner than we
expected.
The Chairman: The resolution now is based entirely upon
the information given to us by M. Deshayes. It is not considered
desirable to adjourn the consideration of this matter until after
the visit to the port, which we are making on Friday, because we
feel it will be very doubtful if we have a meeting of any consider-
able number of members on that day. Therefore I beg to
put to the meeting the resolution which has been proposed by
M. Waddington and seconded by M. Deshayes.
The resolution was put and carried unanimously.
International Marine Insurance Rules.
The Chairman : I now call upon Mr. T. G. Carver to put
before the meeting the proposals of the Committee appointed at
the Buffalo Conference on " International Rules of Marine
Insurance " ; and I should advise him to do so in English.
Mr. T. G. Carver, Q.C. (London), then presented the
following Report of the Committee appointed at Buffalo in
1899 :—
Report.
The Committee appointed by the Council consisted of the
following members : —
The Hon. Addison Brown, U.S. District Judge, New York.
The Hon. Robert D. Benedict, LL.D., New York.
H. G. Ward, New York and Philadelphia.
WiLHELMUS Mynderse, New York.
John H. Gourlie, New York.
Harrington Putnam, New York.
Eugene P. Carver, Boston.
J. Parker Kirlin, New York.
( 133 )
The Hon. Mr. Justice Mathew, London.
Joseph Walton, Q.C, London.
John Hollams, London.
Akroyd Hyslop, London.
S. A. BouLTON, London.
W. MiLBURN, Junr., London.
T. G. Carver, Q.C, London.
Charles McArthur, M.P., Liverpool.
Gray Hill, Liverpool
W. Gow, Liverpool
This Committee met as two sections : one, the United States
section, in New York, under the presidency of Judge Addison
Brown; the other — ^the English — in London, under the presi-
dency of Mr. Justice Mathew. The questions left open at
BufiEalo, and the draft proposed Rules there submitted, were
discussed by each section of the Committee independendy ; and
finally, at meetings of the Committee as a whole, on July 37
and 29, in London, under the presidency of Mr. Justice Mathew.
Messrs. Eugene P. Carver and J. Parker Kirlin represented the
United States section at these last meetings.
In the result the Committee adopted the Rules as now
presented to the Conference, certain minor differences, which
had appeared in the separate conclusions of the two sections of
the Committee, having proved to be capable of settlement in
a manner agreeable to the members of both who attended the
joint meetings.
It will be seen that upon the question left open at Buffalo as
to the test for constructive total loss in cases of damage, it was
resolved to adopt the rule that three-fourths loss shall be
regarded as constructively total, in the cases of ship and of
cargo; also that various modifications were made in the draft
Rules originally submitted.
The Rules thus approved are as follows : —
( 134 )
Insurance
against total
1q9s includes
constructive
total loss.
Actual total
loss.
ConstmctiTe
total loss.
Constructive
total loss of
ship.
MARINE INSURANCE RULES.
(As approved by the English and American Committee
appointed at Buffalo^
I.— Total Loss.
1. An insurance against total loss includes a constructive as
well as an actual total loss unless a different intention is shown in
the policy.
2. Where by a peril insured against an insured subject is de-
stroyed, or so damaged as to cease to be a thing of the kind
insured, there is an actual total loss.
3. Where by a peril insured against the owner of an insured
subject has been wholly deprived of it, and either there is no
reasonable prospect of recovering it, or it can only be recovered
on paying charges upon it exceeding the recovered value, for
which the assured is not otherwise liable, there is an actual total
loss, although the subject may still exist
4. Where by a peril insured against the owner of an insured
subject is deprived of the possession or of the control and use of
it indefinitely, there is a constructive total loss of the subject
5. Where by a peril insured against a ship is so damaged or so
placed that the cost of recovering and repairing her would exceed
three-fourths of her sound value before the disaster, there is a
constructive total loss of the ship.
(d) The cost of recovery and repair is to be estimated
with reference to the circumstances at the time to which
the estimate relates ;* including the cost of prudent tempoiaiy
repairs and removal to a port of repair, and also any neces-
sary expenses of obtaining money, but not including wages
or provisions for the ships* crew at the port of repair.
{b) In making the comparison no deduction is to be
made from the cost of repairs in respect of new for old,
or in respect of general average contributions which have
• See Rule 7.
( 135 )
become payable by other interests towards the cost of
repairs ; but deduction is to be made of contributions which
would be payable by other interests to expenses or sacrifices
to be incurred or made after the time to which the estimate
relates.*
(c) Regard is not for this purpose to be paid to any
valuation of the ship in the policy, unless otherwise expressly
agreed in the policy.
6. In the following cases there is a constructive total loss of Constructive
total loss of
^^O:— cwgo.
(i) Where owing to perils insured against goods are left at a
port short of their destination because they cannot be carried
forward ; or because if carried forward they would not arrive at
the destioatioa merchantable as things of the kind insured.
(2) Where by perils insured against the goods are lost or
damaged to the extent of three-fourths of their insurable value.
(3) Where by perils insured against the carrying ship is an
actual or constructive total loss, and the goods are not forwarded
onder the original contract of carriage, and they can only be
brought to their destinatioir by incurring expenses which would
exceed three-fourths of their gross value on arrival less the
expenses of selling.
The estimate of expenses is to include all expenses
of recovering and preserving the goods and all forwarding
freight which would be incurred after the time to which the
estimate relates,* but not any salvage or other expenses, or
general average contributions, incurred in respect of the
goods before that time.
7. Where notice of abandonment has been given to the insurer. Time for
as hereinafter required, the estimate of whether the insured subject constnict^e
vas a constructive total loss is to be made as at the date of giving *°^^ ^^^•
that notice. Where notice of abandonment has become un-
necessary the estimate b to be made as at the date of the sale or
other event which made it unnecessary.
♦ Sec Rule 7.
( 136 )
Notia of Abandonment.
8. The assured cannot abandon and claim as for a total loss,
unless the insured subject has become an actual or constructive
total loss.
Claim for 9. Where there is a constructive total loss of an insured subject
totalloss the assured is entitled to claim payment of the full amount
depends upon insured if he has duly given notice that he abandons to the
noUce of -^ °
ab.ndonment. insurer the interest in the subject insured by him. Faihng such
notice the assured can only claim as for a partial loss, except in
the cases mentioned in Rule 10.
(fl) The notice must be given to the insurer with reasonable
diligence after receipt by the assured of information of the
loss; allowing time for inquiry where the information is
doubtful.
{b) The notice may be given in any manner, but must
indicate the intention of the assured to abandon the insured
interest in the subject insured unconditionally.
Where notice 10. Where the interest of the assured in the insured subject
mem^ot*"" ^^ ^^^ justifiably sold before he has had fiill opportunity of
necessary. abandoning it to the insurer, and generally where no benefit
could arise to the insurer if notice of abandonment were given
to him, such notice is not necessary, and the assured may claim
payment in full without it
Also notice of abandonment is not necessary from an insurer to
a re-insurer.
1 1. Neither the right to abandon and claim payment in full nor
the right to refuse to accept abandonment is prejudiced by efforts
made by the assured or insurer to save or diminish the loss of
the thing insured.
Effect of Abandonment.
12. Where abandonment of the subject insured has been
accepted, or where there is an actual or constructive total loss,
the insurer beconies entitled on payment of the full amount
insured to his y^j^blc proportion of all that remains of the
( m )
assured's interest in the subject insured, as from the time of the
casualty which caused the loss ; and also to be subrogated in like
proportion to all the rights and remedies of the assured in respect
of that interest or the loss thereo£
13. Where freight is earned by the ship by continuing a voyage Freight
after becommg transferred to the insurer of ship as aforesaid the abandonment,
freight so earned is to be apportioned between the assured and
the insurer of ship in proportion to the distances run by the ship
in eambg that freight before and after the casualty.
If part of the freight for the voyage has been received in
advance, only so much of the freight earned by continuing the
voyage will belong to the assured as, having regard to the freight
received in advance, will give him his pro rata share of the whole.
Effect upon Freight Insurances.
14. For the purposes of an insurance of freight, any freight
apportioned to an insurer of ship under the circumstances stated
in Rule 13 is to be deemed to be lost.
15. Where freight for a voyage is insured generally there is a
total loss of freight if by perils insured against the cargo has
become an actual or constructive total loss, and no goods bearing
freight can be profitably substituted and carried to the destination.
Where specific or chartered freight is insured there is a total
loss if having regard to the freight contract no part of that
freight can be earned.
In either case there is a total loss of freight if the ship has by
perils insured against become an actual or constructive total loss
and no part of the cargo can be forwarded to the destination
except at an expense to the shipowner which would exceed the
height there payable. The expense to be estimated for this
purpose shall include all expenses of forwarding the goods which
would have to be incurred by the shipowner as from the time
when the voyage of his ship was given up.
But if in any cza/tpro rata freight has become payable the loss
of freight is not total.
( 138 )
II.— Partial Loss of Ship; Deductions.
i6. The deductions from the cost of repairs in respect of new
for old, for ascertaining the amount of a partial loss of ship,
shall be those allowed by Rule XIII. of the York-Antwerp Rules
of General Average.
III. — Effect of Negligence, Unseaworthiness, etc
Wilful acts. 17. An insurer is not liable for loss or damage brought about
by the wilful act of the assured himself, although the proximate
cause may have been a peril insured against.
Inherent vice. 18. An insurer is not liable for loss or damage caused proxi-
mately by any inherent vice, weakness of nature or unsoundness
in condition of the subject insured, or of the thing on whose
safety that depended.
Warranty of 19, Upon any insurance of ship, or cargo, or of any interest
' dependent upon ship, the assured warrants as follows : —
(i) That where the insurance first attaches in port all
reasonable care has been taken to make the ship then in a
fit condition to lie there.
(2) That all reasonable care will be taken to make the
ship fit and properly manned, equipped, and documented for
her voyage on each sailing from any port during the currency
of the insurance. Provided that where the voyage includes
more than one stage it will suffice that reasonable care be
taken to make the ship fit and properly manned, equipped, and
documented at the beginning of each stage for that stage.
In case of any breach of this warranty the insurer is not liable
for any loss or damage consequent thereon, although proximately
caused by a peril insured against But the insurance is not con-
ditional on performance of the warranty and is not affected by
a breach thereof except as above stated ; and except as above
provided, there is not any warranty of the fitness of the ship by
the assured.
( U9 )
30. Except as stated in Rule 19, the insurer is liable for Liability
any accidental loss or damage of the subject insured, caused ^x^mately
proximately by a peril insured against ; although brought about or **'^ ^T
contributed to by some neglect of the assured, or by some neglect agunst.
or wilful act of his servants or agents.
IV. — Double Insurances.
21. Where an interest is insured against the same risk for the
same assured by two or more insurances for amounts which
together exceed the agreed or insurable value of that interest,
there is a double insurance.
The assured may in such a case recover in respect of a loss
under any of the policies covering it, in any order, unless he has
already received indemnity for the loss as estimated upon the
valuation in that policy.
22. Where in a case of double insurance one or more of the
insurers have duly paid a loss, they are entitled to contributions
thereto from the insurers on the other policies which cover the
loss, so that the amount paid shall be distributed over the whole,
as follows : —
(a) Where the policies are unvalued or agree in their
valuations, the contribution is to be in proportion to the
amounts insured.
(^) Where the valuations in the policies differ, then : —
(i) In case of partial loss, the contribution is to be in
proportion to the liabilities under the several policies in
respect of that loss.
(2) In case of total loss, so much of the amount paid
under any policy as is ascribable to the part of the valuation
therein which is covered by other policies, is to be contri-
buted to by those policies in proportion to their liabilities in
respect thereoC
33. The assured cannot claim any return of premium in cases
of double in^rance where the risk has attached.
( I40 )
Mr. Carver then said : The subject upon which the Committee
have been engaged is not now a new one. We discussed it
at very considerable length last year at the Conference held at
Buffalo, and it then stood over for further consideration at a
Conference which it was hoped would be held in this place.
I am afraid I am bound to accept the suggestion made from
the Chair and address you in English, but please let me apologise
for so doing. I feel I ought to address you in French, but
I really could not do it
Now the subject of marine insurance was brought forward with
this motive : it was hoped that this Association might do some-
thing in regard to marine insurance — something like what was
done in years past with regard to the law of general average.
This Association had the good fortune to pat into form a series
of rules upon the law of general average which are now practically
adopted in, I think, all maritime countries. The motive which
animated us at Buffalo was to effect, if possible, something of the
same kind with regard to the law of marine insurance. The
business of marine insurance is international business. There is
nothing local in it The objects of insurers are the same in each
country which is transacting maritime commerce. There ought
to be no obstacle to a community of rules of law upon the
subject May I ask your attention to the fact, which I shall
again refer to later, that 1 am talking now of uniformity of rules
of law and not uniformity of contract — uniformity of law. We
are not in any way seeking to restrict perfect freedom of contract,
but are endeavouring to establish a common foundation of law
on which contracts may be based.
There ought to be no obstacle to a community of rules of law
upon this subject, but in point of fact the development of the law
in different countries has led to very serious diff*erences ; and the
question is whether it is worth while to attempt to remove those
differences, and, if so, in what way to do it Differences of law are,
of course, obstructions to the transaction of business between
peoples of different States. Where the business is of a class which
is ordinarily done in each State between members of that State it
( 141 )
is not a matter of much importance ; but where the business is
of a kind which is done or might be done between members of
different States the obstruction of differing systems of law is
seriousL Now that seems to be the case with regard to noarine
insurance. The business of insuring marine adventures tends
more and more to become international business, and there can
be little doubt that the difference in the legal systems restricts
the natural movement in that direction. Those who have
insurances to effect are debarred irom effecting them with
insurers in other countries. To insure a ship or a cargo by
policies in similar form in two or more countries, as is often a
useful thing to do, would be to have quite different contracts
in respect of the several portions of the subject-matter covered
under the separate policies. Or again, take re-insurances. A
re-insurance, say in England, of a risk which has been taken,
say in France, on exactly the same terms of contract would
generally give to the re-insured underwriter rights materially
differing from the obligations which he has incurred under the
original insurance. I know of course expedients are adopted by
which those difficulties and differences are got over; but
expedients are necessary, and I think really what we are trying
to do here is to find out a good and sound form of expedient
The terms of contracts made in several countries may be exactly
alike and yet, as the effect of each has to be determined by the
law of the country in which it was made, the differences of law
may and do make those effects widely divergent
Let me illustrate what I mean : If you make a policy of
insurance in the ordinary form in France, that policy does not
expressly deal with very many of the subjects which are likely to
arise in working it out The policy, for instance, will say nothbg
whatever upon the question as to when the loss is to be treated
as total, and when it is to be treated as only partial. If you made
that policy in England, and made it in exactly the same terms, again
it would not deal with the question when is the loss total and
when is it partial In each country the law must supply the answer.
The law does supply the answer. The contract, if I may use the
( 142 )
figure, is written upon a background of law, but that background
of law is one thing in France* and it is another thing in England.
The result is, when the question comes up as to whether there has
been a total loss or not — a question not dealt with, you will
observe, by the terms of the contract itself— in France the
answer is quite different from what it is when it comes up under
the same contract in England. There is the difference.
Take another illustration. Suppose the contract is made in
France (I am assuming a policy on ship), and the ship is damaged
and there is a partial loss. The underwriter pays for that partial
loss by reference to the cost of repairing; from that cost of
repairing deductions are made, ''new for old/' as it is termed.
Now those deductions in France will, under the ordinary law or
custom, be different from what they are in England. Here,
again, there is nothing said in the policy, but the law or custom
supplies an answer, and that answer is different in one country
and in another. Take again the question under such a policy of
what the effect of negligence on the part of the insured ship-
owner is. That is not dealt with by the policy. The law, which
is the background of the policy, supplies the answer. That
answer is one thing in France; it is quite another thing in
England. Or suppose the question is as to the effect of the
ship's having sailed in an unseaworthy condition on a voyage
covered by the insurance. Again the policy is silent The law
supplies one answer in France and a different answer in England.
These are illustrations from the very matters to which I shall
come later on, but I want first to draw your attention to what the
scheme now proposed is.
The scheme here is, as I said, not to supply a form of policy,
but to try and piece together from the different conflicting systems
of law one system of law which can, by adoption in all policies,
constitute their foundation wherever made ; a platform upon which
they may all stand. Then, when you have got this common
platform you may do exactly as insurers and assured now do —
each in his own country-— make your own stipulations modifying
that system of law for your particular policy. But the first
( 143 )
thing, if we are to get an)rthing like an international basis
for marine insurance, is to arrive at a system of rules which can
be adopted in each country. That is what we were seeking to
do at Buffalo.
The method adopted was that which had been adopted before
with regard to general average. You might of course devote
your energies and the energy of this Association to endeavour-
ing to obtain legislation in the different countries; but such
legislation would, I conceive, involve in each country a change
of the law, and the legislature of each country would have
to be convinced that the same changes of the law should be
made. You would have to get exactly similar legislation in every
country. That is a kind of thing which might come when the
practice in the different countries had become uniform; but in
the present state of things everybody, I am sure, will agree with
me that such a scheme would be quite hopeless ; and, therefore,
the attempt has not been suggested. This is what we attempted :
We said, " Let us seek out where the serious differences of law
in the different countries occur. Looking at the codes in France,
in Germany, in Belgium, and in Holland, looking at the law in
the United States and the law in England, where are the really
important portions of the law in which there are conflicts ? "
Looking at it in that way, one came to the conclusion that
there were, at any rate, four leading subjects on which these
conflicts occurred, and that it would be hopeless to try and
arrive at a common platform of law unless one dealt with those
four subjects. Putting them briefly, they are these : (i) What is
a total loss ? (2) What are the proper deductions to be made,
new for old? (3) What are the proper eflects to be given to
n^ligence of the assured and his servants, and to unseaworthi-
ness of the ship ? And, (4) — sl very important point if you are
to get international insurance — what is to be the effect of double
insurance ? — that is to say, insuring the same interest twice
over; because the different systems of law are violently opposed
to one another on that subject
Upon those four subjects a body of rules was drawn, and
( H4 )
submitted tc the Conference at Buffalo, as a system of law
covering the important matters on which legal systems differ.
Those rules, if adopted in a policy, would have the effect of
making the law of that policy, the legal groundwork of it, sub-
stantially the same in whatever country the policy was made.
The Rules were not resolved upon; but resolutions were
submitted containing the principles of those rules, and those
resolutions were voted upon (except one set which I will speak
of in a moment), and were all adopted. The one set of reso-
lutions which was not adopted was that which dealt with the
definition of total loss — what is to be treated as total loss ? That
subject was referred to a Committee which was appointed, partly
in the United States and partly in England. That Committee has
sat in two sections. In the United States several meetings were
held in New York under the presidency of Judge Addison Brown,
the District Court Judge, New York, who took great interest in
the subject. The other section of the Committee met in London
under the presidency of Mr. Justice Mathew, of our High Court
of Justice, who also took great interest in the subject The two
sections of the Committee dealt with the matter and dealt with
the draft rules which had been submitted, and came very nearly
to the same conclusions. Afterwards both sections of the Com-
mittee met in London at the end of July under the presidency of
Mr. Justice Mathew, and after a certain amount of discussion the
differences between the two sections of the Committee disap-
peared, and they agreed upon the body of rules (which are the
rules submitted at Buffalo modified) now submitted for your
approval
I shall now have to ask your attention to the rules in a little
detail, if I am not trespassing too long upon your time ; but on
the one question which was left open at Buffalo, that is to say, the
definition of total loss — ^what is to be treated as total loss — the
English section of the Committee gave way both to what was
understood to be the Continental view, in France, Belgium, and
Holland, as to what the definition should be of the test for con-
structive total loss, and they gave way to the opinion of the
( us )
United States representatives on the Committee. On the other
hand, the United States Committee to some extent gave way from
the exact definition in the United States, and agreed in effect to
the test upon the Continent of Europe. Therefore, upon that
one question which was left open, it comes to this, that we have
agreed on both sides of the Atlantic to come in to what is the
European view. Now what is that view? Ttie position is this :
In America the law as to constructive total loss, if I may put it
very generally, is that if the ship or the cargo which you insure
has been destroyed or lost to the extent of one-half of its value,
that is to be taken, as between the assured and the underwriter,
as a total loss. We in England use the expression, *^ constructive
total loss.** That, I think, is not an expression which is familiar
in France or in Europe generally, but it is an exceedingly useful
and expressive phrase. We say it is a constructive total loss — it
is for business purposes to be considered a total loss, and there-
fore the underwriter must pay the full amount And of course,
on the other hand, he takes what remains of the property.
That is to say, speaking in what I think is more the language of
Continental Europe, there is a right to abandon and receive
payment of a total loss. In America the test of that was 50 per
cent We said. No, the test is 100 per cent, there must be
really a total loss, that is to say, the whole value must have
gone. Now there was a difference of opinion between us and
the United States ; but when we look at Europe we find that
in all the codes there is a half-way house. In France, 75 per cent
destruction or loss means total loss as between the assured and
the underwriter. The same is true in the other codes which have
foUowed the French code— in Belgium and Holland. In Germany,
where the code is in very many respects of a different kind, the
same again appears — I am not quite certain I am right in saying
that, but I think substantially it is true ; at any rate 75 per cent
damage is regarded as making the ship unworthy of repair.
Now, gentlemen, we considered this matter, and we saw there
would be no unanimity unless we adopted that 75 per cent basis.
And there were several considerations which were brought before the
L
( 146 )
Conference at Buffalo last year which helped us to come to that
conclusion. Perhaps I may briefly state what they were. First of
all, it is a much simpler system. Under the English system what you
have to do is this : you must estimate the cost of recovering and
repairing the ship ; secondly, you must estimate what will be the
value of that ship when it is repaired ; thirdly, you must estimate,
as the law has been laid down, what the value of the wreck is as
it lies. All those three estimates have to be brought in before
you can make your calculation as to whether or not the cost of
recovering and repairing will exceed the result of recovering and
repairing. As against that it was pointed how much simpler it is
to have the one estimate of what the cost of recovering and
repairing will be and compare that with what is more or less a
known quantity beforehand, namely, what the value of the ship
had been. Therefore, the test which we have adopted and are
submitting for your approval is this, that it shall be said there is
a total loss if the cost of recovering and repairing will amount to
three-fourths, 75 per cent, of the value of the ship in her sound
state before the accident. Another consideration pointing the
same way was this : although a shipowner is only to get, on the
theory of the law, an indemnity, it was pointed out that he is
really damaged a good deal more than merely by the cost of
repairing his ship. He not only loses the amount he has to pay
for repairing, but also he loses the services of the ship during the
time occupied by the repairs. That certainly is a loss which in
the English system is not taken into account.
That is how the matter stands, and perhaps I need not enlarge
upon it further. We desire to arrive at a basis of unanimity and
uniformity. We desire also, it may be, to get an advantage from
the greater simplicity of this system, and therefore, we in England
determined that we must fall in with what was the expressed wish
in America and what we have felt no doubt at all would be the
view upon the Continent of Europe. The United States Com-
mittee also fall in, in this sense, that they are willing and desirous
to alter their test from 50 per cent to 75 per cent
So much as to the first question, with regard to total loss.
( 147 )
I ought, however, to add that in the code of France, and in
the codes which follow that of France, tliere is another test for
total loss which we did not fed able to adopt at all. It is a test
which has come from the history of the law. I believe I am
right in saying that it is not really practically approved in France ;
but the French code also provides for a right to abandon in
certain other cases than that of damage to the extent of 75 per
cent The modem code (Article 369) allows abandonment in
cases of capiure, shipwreck (naufrage), *' ^chouement avec bris "
— ^which I translate ''stranding with breaking" — innavigability
by perils of the sea, decree of a foreign power, and loss or
deterioration of the effects insured amounting to not less than
three-quarters. There have been great discussions over the
words ''naufrage" and "^chouement avec bris," which I need
not enter into, but it seems clear that where there has been
disaster to a ship coming within the meaning of " naufrage " or
" ^ouement avec bris " that is sufficient to entide the assured to
abandon without reference to the ultimate consequences, or to
whether it was worth while to raise the ship or to get her off the
strand ; and, further, that it also!entitles the assured of cargo on
board to abandon without enquiring whether or how far the cargo
has beea affected. So that if you get a ship stranded and broken
—whatever " broken " may mean, which I confess I am not able
to tdl you — although there may be no constructive total loss in
the sense of 75 per cent, damage, and although the cargo may be
absolutely uninjured, there is a right at once on the part of ship
or cargo to say to the underwriters, " Take it and pay us." We
felt we could not advocate that, and we were strongly supported
in that view by what we have found to have been the view in
France. Before a French Commission, which sat in 1S65, it was
proposed to abolish this right of abandonment in those cases.
The matter was discussed, but it was thought better not to inter-
fere with the law. As regards cargo, for instance, whilst recog-
nismg that the loss of cargo may be httle or nothing, and knowing
that the commercial practice was to exclude this legal right to
abandon, the Commission considered it better to retain the law
L 2
( U8 )
and leave those who wished to alter it by contract. There was
reluctance to interfere with the written code. We are not
proposing to adopt the French law in that particular, and we
submit that as regards cases of damage the one test should be,
Has the damage amounted to 75 per cent of the value, before the
accident, of the ship or of the cargo in its sound state ?
I ought not perhaps to go further into this matter, although there
is a good deal to be said, but I will go briefly to the other rules.
We have had the advantage — but, unfortunately, I am afraid this
meeting will not have the advantage — of having had before us a
criticism of the rules by a Belgian Committee. The prints of
this were sent off from London on Monday morning, but have
not arrived. I suppose they are somewhere in the post«ofiice.^
The Belgian Committee reported upon the draft rules submitted
at Buffalo. They had not got before them the modifications
which have been made by the American and English Committees,
and therefore they at once raised objection to the proposal to
adopt the English test of constructive total loss. But I think I
may say, with the exception of that, they do not attack our other
proposals upon that portion of the subject, and I was able to
write and point out to them that we had adopted what was the
Belgian rule. If you have the rules before you, you will see that
what I have said relates to the first fifteen of the rules. I have
not gone through in detail the mode of working out the rule of
constructive total loss, and, as everybody who understands marine
insurance law will see, it requires considerable working out.
That has been done in the first fifteen rules, which at present I
pass over, having said what I have said about them. The heads
of them are : total loss ; notice of abandonment ; effect of
abandonment ; effect upon freight insurances.
The second difference which one needs to deal with — ^and it
may be dealt with in a most simple manner — ^is the matter of
deductions in the case of partial loss of ship. That is Rule 16,
which deals with it simply by adopting a carefully drawn rule of
deductions made in the York- An twerp Rules of General Average.
* Sec below, p. 179.
( H9 )
Then we come to the third group of rules, upon which I
anticipate there may be some considerable difference of opinion
amongst those gentlemen who know and axe familiar with the
French law. That is found to be the case in the report of the
Belgian Committee. The questions are : What is the effect of
negligence on the part of the assured upon the policy of insurancCi
and what is the effect of unseaworthiness of the ship upon the
policy of insurance ? As regards negligence, I prepared a note
(which I hoped would have been in your hands, but unfortunately
that also has gone astray) criticising what was said by the Belgian
Committee.^ If I may, I can most shortly put the matter before
you by reading part of that note upon that subject : — " The Belgian
report indicates that the insurer ought in no case to be liable for
losses which have been contributed to by personal negligence of the
assured ; that, as regards servants of the assured, negligence of
some classes of servants should vitiate his claim while negligence
of others should not ; and, that fraud of servants chosen by the
assured should always vitiate it And the report suggests that
negligence producing unseaworthiness of the ship should be
treated in the same category as negligence in other matters.
Under the proposed rules, on the other hand, the fundamental
question is, Has the loss resulted proximately from a peril insured
against? If it has, the circumstance that the peril has operated
owing to negligence of the assured, or his servants, is regarded as
immaterial ; unless, indeed, the ship has sailed unseaworthy in
consequence. As regards fraud, though the insurer is not to be
liable for losses brought about by any wilful act of the assured
himself, no distinction is made between neglects of his servants
and wilful acts by them, to which he is no party. The following
questions then have to be considered : — (i) Should there be a
distmction between losses by perils insured against due to
negligence, and losses not so due? (2) Should there be a
distinction between personal negligence of the assured and
negligence of bis servants and agents ? (3) Should there be
a ^slinction between one class of servants and agents and
' See below, p. 18S.
( 150 )
another ? (4) Should fraud of a servant vitiate the claim of an
assured ?
•' (i) The object of insurance k to cover accidental losses. It
is immaterial to the assured whether the accident has been
brought about by negligence or not. He waiits to be protected
against its consequences. There is no rule 6r need in law or in
morals standing in the way of that. The distinction between
negligence and fraud is here all-imj)ortant. An assured ntust not
take advantage of his own fraud. No body of rules such as this
could properly allow him to do so. But carelessness, failure of
skill, imprudence, are among the ordh\ary causes which lead to
losses by marine perils. To exclude indemnity for such losses
merely because they have been so brought about would be to shut
out the indemnity which every prudent shipowner or merchant
is sure to want It would therefore be to make yoUr rules
inappropriate to the needs which have to be satisfied.
" (2) Ought there to be a difference when the negligence has
been of the assured personally ? Rememberifjg always that we
exclude fraud of the assured, why should there be a difference
between his neglects or imprudences and those of others whom
he has employed todo his work for him ? If there is to be an
obligation on the assured to conduct the adventure with care,
a failure of care by servants should have the Same effect as a
personal failure. Why is an assured who navigates his own ship
to be in a different position from one who employs a master ? If
the ship is lost by bad navigation, the underwriter should be
responsible in both cases or in neither. Again, why should an
assured who personally looks after the equipment of his ship, or
the stowage of her cargo, be in a different position from one who
leaves all such work to others? Why is the small shipowner
who works himself to be worse off, as regards his insurances, than
the man who.works a large line through his superintendents, from
the security of an office ? The difficulty in applying fairly such
a distinction between personal acts and acts of agents is, that
there is no obligation to act personally. As towards insurers,
any particular act of the adventure may be done by the assured
( 151 )
himself or by othen, as he chooses. To make the insurer^s
liability torn upon the chance of who has done that act, is lo
introduce a needless uncertainty and inequality. Either an
insurer should be allowed to assert that careful conduct in
navigation, or other matters, is a condition of his obligation, or
he should not If not, the fact that the want of care lay with
the assured himself should make no difference.
''(3) Then should there be a distinction between acts of the
master and crew and acts of other agents? I understand that
such a difference has been read into the Continental codes
through the meaning given to the peril of ' barratry of the master
and mariners.' "
I understand there is really no distinction expressly made
in the French code between negligence of people on shore
and negligence of the people on board ; but the word
^barratry," which comes into most policies, is construed to
mean negligence of the master and mariners; and, I believe,
is construed not to include fraudulent conduct of the master,
the very case which we consider to be covered by it " The
Belgian report suggests that this distinction between the master
and crew and the other agents of the shipowner should be
extended to all servants doing work on board the ship. But no
reason is given for this. Perhaps the line suggested is rather
between those who are and are not engaged in fitting the vessel
ont, rather than between those who work on board and those
who work on shore. If so, we get near to the condition of
seaworthiness presently to be considered.'' In England we say it
does not matter at all whether the accident by perils of the sea
—perils insured against — ^hascome about by negligence or not, but
we say the shipowner must start with his ship seaworthy. In
Fiance they say nothing about seaworthiness ; but they say losses
by perils insured against are not covered by the policy where
they have been brought about by negligence, unless it is negli-
gence of the master and mariners. That is approaching the
thing fiom different sides, but the results are remarkablv nearly
( i5» )
alike ; with this difference, that whereas our rule is a hard-and-
^t rule, and says the ship must be seaworthy, the French rule,
as I construe it, says there must not be negligence in making her
seaworthy, and that is the distinction which I want to labour
a little further on.
(4) Proceeding to the fourth question put above : as already
said, '' fraud or wilfully illegal conduct of an assured must vitiate
his claim ; but is that true of similar conduct on the part of his
servants ? The Belgian report suggests that fraud of the captain
chosen by the shipowner should not be covered. That shows
how differently the peril of barratry has been understood. As we
understand it, that peril is the risk of wrongful acts of the master
and crew done hostilely to the assured. It is nearly always
expressly insured against, and it seems one which a prudent
owner may well desire to have covered.
" To sum up, it appears to be necessary for the usefulness of a
body of insurance rules that they should make insurers indemnify
against losses by perils insured agamst, even though occasioned
by negligence, want of skill, or imprudence. Also that, as
towards insurers, there is no valid distinction between negligent
but innocent acts of the assured, and similar acts of his servants.
But that, as regards wilful wrongful acts, that distinction should be
drawn."
So far as regards negligence and fraud. But in the system of
law which operates in America and which operates in England
there is a qualification that the ship must, for the effectiveness of
certain forms of policy, have been seaworthy on sailing. In the
absence of express agreement an absolute obligation to have the
ship seaworthy on sailing is implied, and is a condition of the
policy. So that though the defect may have been a latent defect
which no skUful, careful man could discover, and whether that
defect has caused the loss, or something ebe has caused the loss,
the claim against the underwriters is invalid. The policy is a
void pohcy if the ship starts in an unseaworthy state, in fact,
although there may have been no negligence and no fault on the
part of the shipowner O^ anybody else in letting her so sail On
( 'S3 )
that subject our law seems unjasdy severe, and it certainly is in
conflict with the rules of Continental Europe. In our view under-
writers cannot fairly ask for such an absolute warranty and
condition. And we know in practice that its very severity makes
it very difficult for underwriters in England, and I believe in
America, to rely upon it. They do not care to rely upon it, or,
if they do rely upon it, juries are very slow indeed to help them
by their verdicts.
Then why should we not, on that subject, come to the
Continental view? We thought we foirly could, and have
proposed two things. First, that there shall not be any absolute
warranty of the seaworthiness of the ship on starring on the
voyage, but merely an undertaking by the shipowner to use all
reasonable care with that object Secondly, again adopting the
view of Continental Europe, we propose that where there has
been a breach of that undertaking to use all reasonable care in
sending the ship to sea seaworthy, the consequence of that breach
shall not be to vitiate the whole policy, but merely to disqualify
the shipowner from making any claim for a loss which has
resulted from that breach. Under the law as it at present stands
in America and in England, if a ship goes to sea with an
insufficient quantity of coals for the voyage she is unseaworthy,
and she may be lost by a peril of the sea before half the coals
bave been used and before any difficulty from want of coals
bas arisen, but the policy is a void policy and no claim can
therefore be made. We propose to depart from our rules on that
point and to adopt what is in effect, I think, the Continental
A farther point, and one of considerable importance, is this.
This severe rule of absolute warranty and condition of sea-
worthmess applies in England only in the case of voyage policies ;
it is a sort of chance that it has been so held, but it has been
beld, and is part of our law, that it does not apply to time
policies. The need, if any, for it exists as much with time
policies as with voyage policies ; but inasmuch as time policies
may attach when the ship is at sea it was considered that a
( 154 )
promise that the ship was seaworthy at the time of the policy
attaching could not be implied ; and the result is, therefore, that
no warranty at all is implied. That has not been the view, as I
understand, in the United States ; I believe it is there held that a
warranty of seaworthiness applies in the case of time policies as
well as in voyage policies. And on the Continent of Europe the
rules about the necessity of care in equipping the ship and
sending her to sea'ifit seem to apply just as well in a time policy
as in a voyage policy. We propose to make one rule applicable
to the whole, that is to say, that on each commencement of a
voyage there shall be an undertaking by the assured that all
reasonable care has been used to have the ship fit for the voyage,
and that he shall not have a claim on his underwriter for any loss
which may happen in consequence of the ship's unfitness at that
time.
The fourth group of the proposed Rules deals with double
insurances. As to that I think I need say very little. The
English rule is that all policies entered into are treated as being
valid ; if a thing is insured, say twice or three times over, each
policy is liable for the fiill amount until that has been received
once by the assured : but the different underwriters have rights
of contribution inter se. In America the rule was different
Mr. Eugene P. Carver (Boston, Mass.): The rule was the
same but the policy was different.
Mr. T. G. Carver : Perhaps I am wrong in saying what it was ;
but, anyhow, on the Continent of Europe it was different The
law there is, if you have policies say for ;^2ooo upon a ship worth
only ;^iSoo you have to take the policies in order of date; and
the first policies up to ;^i5oo in point of date are all valid, while
those that go beyond are invalid and have no effect I have not
so far found any difference of opinion that the English rule is the
right one ; namely, to treat all the poUcies as valid and let the
underwriters contribute inter se. That was certainly the view in
Buffalo, and I find from the Belgian report it is also the view of
the Belgian Committee. I hope I may not be wrong in assuming
( '55 )
that the same view will be taken by other members of this
Conference from other countries.
That being the position, I think I have little nx>re to say,
beyond proposing that these rules shall be adopted ; but I am
apprehensive of a certain misunderstanding of what our scheme
is, so may I just reiterate what I said before. The object
here is not to dictate the form of contract. The object is to
form a code of rules covering those portions of the law on which
conflicts arise, so that by adopting that code in your policy —
whether you make it in France, or Belgium, or Germany, or
England — if you have got that little code, supplemented of course
hy the local law, the law of the country in which the policy is
made, you will substantially have one platform of law common
for all, and it will be immaterial therefore where your policy is
made. Starting from that, I suggest there need be no difficulty
m making your special contract ; just as you make your special
contract if you are living in France on the basis of the French
law ; you modify the French law by inserting provisions which
are contrary to what the law would infer if there were no
provisions. Take an illustration which I have in my mind. It is
said to me that these rules cannot be accepted by shipowners in
England because they insure their vessels on time policies, and
they do not want and will not be willing to undertake any
warranty of seaworthiness at all. The law of England does not
infer such a warranty of seaworthiness, and they have adapted
their business to that state of the law. 1 for one do not wish,
and I do not think anybody else is wishing, to require them to
give any warranty. But I do say that this body of rules may be
taken as putting the law as it should be in the ordinary case ; and
you can in any particular policies say that the warranty of sea-
worthiness is waived, or whatever may be the appropriate
expression* I repeat that we are not seeking to dictate a form of
policy, but are endeavouring to find a platform of law which may
be adopted in all countries, so as to have all policies, wherever
written, written upon the same background.
May I suggest that it would be well to take these rules by
( 156 )
sections. The first section, dealing with total loss, consists of
rules which are interdependent and form one whole; but it is
independent of the other three sections, and I would move that
the first fifteen rules, as approved by the American and Enghsh
Committees, be adopted by the present Conference.
Dr. Gov ARE (Paris) : Gentlemen, I must first apologize for
speaking in English when I only know that language so
imperfectly, but all the same I think I shall be better understood
than if I spoke in French.
I am not going to make a speech, but only a few remarks. I
have been listening with the greatest attention to the very learned
and interesting remarks that Mr. Carver has just made to us, and
I think that we all took the greatest pleasure in listening to him ;
but the paper containing what is called '' Marine Insurance
Rules " was given to us only yesterday afternoon, so none of us
have, I think, had sufficient time to gain full knowledge of it and
to read it thoroughly and to think about it, or even to see if there
are not some modifications that might be introduced. The
matter is not an ordinary one, as Mr. Carver told us most
candidly, and the object of these rules is that they should become
a general code for the whole of Europe, or rather for the whole
civilized world, including the United States of America and all
other countries. Therefore it would become practically the code
for maritime insurance for England and the United States and
also for France, for Spain, for Germany, and for all countries.
Mr. Carver said that comparison has to be made between the
Anglo-Saxon, the English and American, legislation and the
Continental law. The whole of these rules — a most elaborate
work — have been drafted by English and American gentlemen
exclusively. There was not one Continental lawyer who took
part in the work. The consequence is we Continental lawyers
want to consider it We only obtained copies of the draft rules
yesterday and we have only this morning heard Mr. Carver's
explanatory remarks ; and this is all so extremely speedy that it
does not give us time enough for reflection. We want to consider
( 157 )
whether the proposals made in the draft of rules are not likely to
give rise to other nuisances and inconveniences. We all know
the nuisances and inconveniences of the actual law, but we do not
know if; when we alter the actual law and put another law instead
of it, we may not bring in other nuisances and inconveniences
perhaps greater and more dangerous than the ones we are
suffering from now. We do not say it will be so, but we say it
might be so, and the only way to know if it will be or might be is
to think about it — not now, not this afternoon. Unfortunately,
looking all round me I see that the Continental lawyers gathered
here are so few that they would not be really representative of the
Continent. We are a few Frenchmen ; you are many Englishmen
and many Americans. I do not see any Spanish representatives
here, and I do not think there is a German amongst us. In fact
I can say that the Continent is not sufficiently represented.
Then what would be the thing to do ? — and this is the proposition
I have to make. Next year, in Hamburg, in the beginning of
June or July, 1901, the Comitd Maritime International will
have a meeting. At that meeting many of the members of
this Association will take part I know Mr. Carver is also a
member of the International Maritime Committee. Then we
might, on the Continent, give time to the consideration of this
mauer, warning the members of the Association that that will be
the question that will have to be discussed. We might then
thoroughly discuss the question again from perhaps the more
Continental point of view, so that it would act as a counterbalance
— havmg on the one side the English and American view, and,
on the other side, the Continental view, which will perhaps agree
with the English and American ; but diat I cannot say. Perhaps
it would not agree, and then we can have an exact composite
work — ^taking in on the one hand the English and American view
and on the other hand the Continental view, and comparing them.
Then and only then can you make it an exact and good work.
It is for that reason I think that what we ought to do now is to
thank Mr. Carver and the Committee for their most valuable
work, keeping it in store for a little while in order to see what the
( IS8 )
Continental lawyers and practical men will say for or against it,
and then, only after next year, we could have another meeting
and decide upon it after we have made a proper general
examination of the question. ^ I propose the following amend-
ment : '' The Conference proposes to defer the examination of
the Rules of International Marine Insurance to the next meeting
of the Association, in order to allow the Continental nations to
study the new rules and to express their opinion."
**La Conference propose de surseoir k Texamen des regies
d'assurances maritimes internationales jusqu'k la prochaine
reunion de TAssociation, pour permettre aux r^prdsentants des
nations Continentales d'^tudier les regies nouvelles proposdes et
d'exprimer leur avis."
Mr. T. R. Miller : I have had no communication with Dr.
Govare, but his opinion happens to fall in with that of several of
my colleagues, including my own, with regard to this matter. I had
intended proposing the following resolution, and I do so for the
reason, I think, enunciated by Mr. Carver, when he points out to
us the great difficulties that do exist in formulating a set or code
of rules for the purpose of marine insurance. I am sure we are
all gratified to hear what has fallen from Mr. Carver. He is a
past-master in matters concerning marine insurance, but I do not
intend to follow him in the many remarks he has made further
than to say this, that it is clearly the English view that is repre-
sented by Mr. Carver and the other English gentlemen who have
prepared this very able report. Subject to modification after
hearing the views of some other gentlemen probably, but in order
to bring the matter to a conclusion, I had intended to propose,
and shall do so now, the follot^ring resolution : " That the
proposals of the Committee appointed at the Buffalo Conference,
1899, on International Rules of Marine Insurance be referred
back to the said Committee for further consideration, with a
recommendation that the said Committee confer with the
Chamber of Shipping of the United Kingdom and its affiliated
associations, together with the representatives of other nations
( 159 )
and also the Committee who assisted in the drafting of the late
Lord Herschell's Bill," As you all know, a very valuable attempt
was made by Lord Herschell, and since then by others, with a
view to codifying the various clauses relating to marine insurance.
Perhaps it would be as well to mention the names of the gentle-
men who assisted in the preparation of the Bill : Mr. John Glover
(now Sir John Glover), Mr. William Milbum^ junior, Mr. Mac-
kenzie (of Liverpool), Mr. C. H. Hogg, average adjuster, Mr. E.
H. Street, Mr. Douglas Owen, Mr. William Walton, and Mr.
Vallance (of Liverpool). I do not know whether it is desirable
I should say any more on this subject, but I have great pleasure
in moving that resolution. Of course a very great deal might be
said in connection with what Mr. Carver has said this morning
with regard to the liabilities of insurers and shipowners as regards
cargo, not necessarily as regards the ship, as also with regard to
double insurance — ^and double insurance is a question which I
think requires very serious consideration even beyond what
is proposed in the report However, I leave those matters,
because I take it the possibility is that the question will ^be
deferred
Mr. KuGENS P. Carver (Boston, Mass.) : I should like to
second Mr. Carver's motion, so as to bring the matter before the
Association. In seconding the motion, I should like to make a
few remarks, perhaps from the American standpoint. At the
Conference in Buffalo a year ago a set of insurance rules was
presented, which prior to that presentation I understood had been
sent to each and every member of the Association. So that a
year ago, or a little more than that, each and every member of
the Association had notice of what was to be proposed by the
English members. It was by reason of that fact very largely,
inasmuch as the people from my city did not agree with the
English proposals, that we spoke with some of the insurance and
^pping men in Boston, and I personally took an interest in
going to the Conference about theoL At that time we differed
very much with the English proposals, and it being an American
( i6o )
meeting, and being held at a time when we had a meeting of the
American Bar Association, the number of American representa-
tives was far in excess of the English, and they would probably
have been wedded to their own law. Now the real fact is that
marine insurance in the United States is more favourable to the
shipowner and cargo-owner than it is in any country in the known
world with regard to the question of constructive total loss. We
have taken the Continental rule as it was understood at the
beginning of the century, and instead of making it 75 per cent
we made it 50 per cent. Now there were only two questions on
which we differed from the Continent. The first is the question
of double insurance, in which we adopted the English rule, but
our merchants said when dealing largely with the Continent at
that time they inserted in the policies of insurance a clause which
made them conform to the Continental rule. We went even further
than the English did on one matter, which I think myself was
a harshness which never was intended in the general insurance
law and which does not exist in any insurance law except that of
marine insurance — we adopted the harsh rule of implied warranty
of seaworthiness, carrying it to the full extent that England does.
Therefore, when we met in Buffalo, we had presented to us the
English rules in their entirety, and we were asked to adopt those
rules, except that there was a question of modification with regard
to the harsh rule of warranty of seaworthiness. The discussion
resulted in the selection of a Committee on our part, which I
think has met seven times in the City of New York under the
chairmanship of one of the ablest marine insurance lawyers and
judges in the United States, and resulted in our coming to what
we believed was the Continental rule as a compromise between
the two extreme rules which exist Now I do not think this
matter should be forced down anybody's throat, as we say in
America, but, on the other hand, I do not think we should be
asked to come again three thousand miles across the water with
our representatives, because we are a large commercial nation,
with regard to a set of rules on which we think we have conceded
all we can possibly concede, and much more than many of our
( i6i )
friends across the Atlantic would be willing to do. If gentlenien
desire to have farther time for consideration, and desire that the
next meeting of this Association shall be asked to reconsider what
may be here proposed — possibly not asking them to adopt it, but
to say that these rules are a basis for consideration and that they
are not to be adopted unless we have as much notice at least as
we have had with regard to these — I may say, speaking as one
of the members, as far as the United States is concerned, owing
possibly to her isolated condition, we should not be perfectly
willing to wait for that time ; but we are to*day confronted with
the fact that a great many insurance companies, both from the
United Kingdom and from the Continent, are coming and
establishing agencies in our country which offer liberal terms of
business, and we do not want them to make a policy founded on
rules adopted by any International Conference unless we have fuD
time to consider and discuss the matter.
Dr. Henri Fromageot (Paris) : I second Dr. Govare's amend-
ment
Mr. John Dent (representing Newcastle Protection and
Indemnity Association, Newcastleon-Tync) : I have much
pleasure in seconding the amendment which has been proposed
by Mr. MiHer.
Sir Walter Philumore: I venture to suggest that the terms
of the amendments should be read to the meeting in English and
afterwards in French.
The amendments were accordingly so read.
Mr. T. V. S. Angier (representing Chamber of Shipping of
the United Kingdom) ; I submit that those two motions come very
close together. The object of both seems to be a reconsideration
of the matter, though possibly one goes further than the other.
Sir Walter Phillimore: No; Dr. Govare's point is not
reconsideration, but simply reservation. He does not say he
M
( i62 )
objects to the rules, but he wants time to consider them.
Mr. Miller's proposal is in the nature of a criticism — to refer the
matter back to the Committee with a suggestion that it is not
properly complete.
Mr. Dent : My object in seconding Mr. Miller's motion was
because the shipowners are so largely interested in the question
of the rules set out here that they should certainly have a voice
in the matter. They strongly supported Lord Herschell's Bill,
which has been before Parliament, and will be again ; and were
we to adopt these rules to-day we should be adopting something
different to what they bound themselves to in Lord Herschell's
Bill. Therefore I think the proper course is to consult the
shipowners in the matter, and I have pleasure in seconding
Mr. Miller's motion.
The President of ths Association : I think the motion of
Mr. Miller b the wisest course to pursue, for this reason amongst
others. The record of the proceedings is not in the French
language, and anyone who compares the rules as presented by
the Committee in English form with those as presented in French
form will see at once that, owing to the difference in the two
languages, some of the ideas which the American and English
members intended to express have not perhaps been put in
French in precisely the manner intended.^ Let me call attention,
tor instance, to the fact that the French language has no word to
correspond with the English word " constructive " in the sense of
constructive total loss. What is the consequence ? We have in
the first article the phrase, ''par insuffisance de valeur de
navigability." We have in the fourth article the phrase, " par
insuffisance de la valeur utilisable." We have in the eighth
article the phrase, intended to be general and to cover every case
of constructive total loss, ** ou par insuffisance de valeur utilis-,
able," leaving out entirely reference to navigability. This of
course is always a difficulty when dealing with an obscure and
^ The transhttion referred to, which had been prepared under muck
pressvM, is not here reproduced. — Hon. Gen. Sbcs.
( >63 )
conflicting subject, and particularly when different languages must
be employed. Why not, I would ask the Committee, resort to
the simple expedient which is common in legislation and com-
mence their rules with certain definitions ? I would substitute for
Rule 2 the following: "There are two kinds of total loss —
effective and constructive total loss. A loss may be called a
total loss if it causes such a deterioration of the object insured as
makes it considered in the point of view of the law an actual total
loss according to the rules hereinafter set forth."
Mr. T. G. Carvbr : It need not be by damage, which is the
effect of the translation which has been made : it may be by
deprivation.
The President: I understand there is no word in French
which corresponds with " constructive."
M. Waddington : " Absolue" — that is oar word for total loss,
instead of " effective.'*
The President : I would have the second rule read, •'An
assurance against total loss comprehends as well a constructive
total loss as an actual loss unless a different intention is stipulated
for m the policy." The fourth draft rule attempts to define a
constructive total loss as resulting in ** insufHsance de la valeur
utilisable." I would make that read, " Quand le propri^taire
d'un objet assur^ est d^pouilld ^ tout jamais de la possession du
controle ou de Tusage de celui-ci, par un risque contre lequel il
^tait assurd, il y a perte totale constructive." Then you have the
whole thing defined. So in each of the gioups the same.
Theiefore in supporting the resdution of Mr. Miller I would add
also, with his permission, that this matter be also referred to the
Committee.
Sir Walter Philumore : I would first of all ask Mr. Carver
if he can tell us under what circumstances this French translation
was prepared. Has it been done with any authority ?
U 2
( i64 )
Mr. Carver : I only saw it yesterday, and I confess I entirely
agree that it does not satisfactorily represent the rules.
Sir Walter Phillimore : It has not been done by the Belgian
Committee ?
Mr. Career : Na The Belgian Committee merely had the
English Rules.
Sir Walter Phillimore : I venture to suggest to the members
of the Association, as we have now reached the hour of
12 o'clock, that it might be veiy desirable that we should adjourn
this discussion till 2 o'clock, and, before then, some of the
members may hit upon some formula which may give value
and weight to the great labours of the English and American
Committees and which may put us in train to have an authori-
tative French translation — not, I am afraid, at this gathering, but
at some future one, and may at least put on record the fact that
the English and American Committees have agreed so far. I
cannot help thinking we might get some result of that kind which
may make it possible also for our Continental friends to make all
reservations as regards both the rules and the resolution, and yet
at the same time not make them appear to reject that which
apparently has been in a great measure designed in order to meet
Continental views and opinions. I therefore venture to suggest
that the Conference should now adjourn.
Mr. T. G. Carver : I would suggest that at least the Report of
the Committee be accepted, if not adopted.
The Chairman : I understand that to be Sir Walter Phillimore's
suggestion.
Mr. T. G. Carver : May I make a remark on the point Dr.
Govare makes. He says this is a matter that came before the
Conference yesterday for the first time. May I call his attention
to the fact that not merely has the Association in conference at
Buffalo dealt throuirhout the whole of one day with this subject.
( »6S )
but the whole of the proceedings are printed in the Report of
the 1899 Conference, which no doubt has been m the hands of
all members of the Association ; and though no doubt it is
in an English form, I am quite sure that that has not been
anj bar to the understanding of what was done, amongst Dr.
Govare and the other gentlemen from France and other Conti-
Dental countries. So that it is not really a new subject, but a
subject which has been very fully discussed and thrashed out
The other observation I would wish to make is this. We have
here representatives from various bodies who are asking for a
postponement or reference back of this matter ; but we have not
really had one single point taken in objection to what the Com-
mittee have done, and therefore a reference back would be without
any kind of information from them of what it is they object to.
It is not a new thing which is now put before them, but one
which they have had before them for months, knowing it would
be proposed again, not quite exactly in the same shape. I would
ask, therefore — either now or after the adjournment — that we
should have some intimation of what it is that is objected to ; and,
if we are to devote ourselves to this subject again, in what direction
we are to look for improvement
Mr. Angier : I was going rather to challenge what Sir Walter
Phillimore gave out just now, that these rules were the results of
American and English opinion.
Sir Walter Phillimore : I said the opinion of the Committees.
Mr. Angier : Then I withdraw that objection ; but I raise the
objection that the shipping interest was not invited to send
delegates to that Committee. Our American agent was good
enough and loyal enough to watch the case practically for us ; but,
as far as really taking part in that Conference, or in the Com-
mittee, or in any way endorsing the results of those deliberations,
the shipping interest has had no part whatever, and they pin their
main objections to two of the results arrived at as shown by
Mr. Car>er, namely, the definition of constructive total i/^*e -• '
( >66 )
the alteration in the wananty of seaworthiness. Those two points
are very clear, and we do strongly object to having any legislation
or recommendation for a general adoption of those rules until, at
any rate, we have properly put forward our grounds of objection.
We certainly should make a stand against that alteration in the
warranty of seaworthiness and this definition of constructive total
loss.
Mr. T. G. Carver : I ought to have read the formal Report
of the Committee, which I have here, and which shows who the
Committee were. Of course Mr. Angier, I am sure, will under-
stand that we were most desirous of getting a representative
Committee, but it could not be very numerous ; and I think the
shipowning interest was represented by Mr. William Milbum,
junior, who was one of our Committee in London*
The Chairman : Now, gentlemen, there is a resolution before
the meeting which has not been seconded yet, and which perhaps
you will all agree to, and that is that we adjourn till 2 o'clock.
[Adjourned accordingly.]
On reassembling after the adjournment the discussion was
resumed
The Chairman : Gentlemen, my attention has been drawn to
Rule 10 of the Constitution of this Association, which directs that
the language in which the discussion shall be carried on and the
minutes kept shall be that of the country where the Conference is
held, unless the Conference otherwise direct. Now our discussion,
this morning at all events, has been conducted in English, and it
has been conducted in English at the suggestion of M. Waddington
and other gentlemen who have been here, and who have assured
me that most, if not all, of the gentlemen present sufficiently
understand the English language to make it convenient that the
discussion should take place in that language, and, therefore, it
has taken place in that language. I am going to move, in fact,
( i67 )
as a resolntion that the discussions on this occasion and the
minutes shall be continued, as they have so far been carried on,
in the English language. It is necessary that I should put this to
you because of this Rule of the Association, and I will put it to
you, if you please, without any formal vote and ask you to assent
to that
Mr. Angisr : That excepts the case of our French colleagues
who haYC spoken in their own language and not in English. It
gives a certain amount of license.
The Chairman : There is a clause in this rule that each
member may write or speak at his own option in his own
language. That I do not propose to interfere with at alL Of
course each gentleman may write and speak in his own language,
which I think is sufficiently understood by the Englishmen ; but
the report of the meeting will be in the English language, and
the minutes generally will be in the English language.
The motion was agreed ta
The Chairman : Now I think the discussion of the Marine
Insurance Rules may continue.
Sir Walter Phillimore: Monsieur Autran and I have
together drafted, chiefly in English, a resolution which we venture
to submit as a solution of the question* It is a little long, but is
as follows : — ** That the report of the Committee be accepted as a
basis of drafting" [which I have translated with the assistance
of M. Autran to mean "projet de loi'*] "and ordered to be
printed in the proceedings of the Conference, and that MM.
Autian and Govare be requested to prepare a French translation
to be inserted in the proceedings of the Conference : and that if
any member of the Association has any amendment to make he
shall forthwith submit it to the Council in writing, and that such
report with such amendments be the first matter for consideration
at the next conference."
( i68 )
Mr. £. P. Carver : I would suggest the words *^ amendmen
or substitution/'
Sir Walter Phillimore : I will add that if you like.
The Chairman : I think myself that having regard to the
number of amendments that have been introduced in consequence
of the resolution submitted by Mr. Carver, it is desirable to see
whether the whole matter cannot be focussed and dealt with at
once. For my own part I do not think that further discussion
will be of very much assistance to any of us. Sir Walter
Phillimore has handed to me a draft of the resolution which he
submits and which Mr. Autran seconds, which appears to me
sufficiently to cany out the wishes of all present, and I propose
therefore to read it to you :
** That the report of the Committee be accepted with thanks
as a basis of drafting {comme projet de lot) and ordered to be
printed in the proceedings of the Conference ; that MM. Autian
and Govare be requested to prepare a French translation to be
also inserted in the proceedings; that if any member of the
Association has any amendment or substitution to suggest he be
requested to submit it in writing forthwith to the Executive
Council, and that this report, with any such amendment or
substitution, be the first matter for consideration at the next
conference."
If you will just allow me to say a word or two with reference to
that suggested resolution, it seems to me that it meets the
objections of the gentleman who spoke first after Mr. Carver — I
mean Dr. Govare — ^who suggested that, without in any sense
criticising or objecting to the report, an opportunity for fiurther
consideration ought to be afforded to the members of the
Association. He said, as I understood, that if that opportunity
for further consideration were afforded the members of the
Association would have the advantage of hearing the opinions
expressed by different representatives of the countries on the
( i69 )
Continent of Europe as distinguished from England ; and that
rq)i:e8entatives of the shipping interest and of the insurance interest
in Hambuig and elsewhere would in the meantime meet together
and have an opportunity of considering these proposals and
expressmg their opinions on them. This resolution suggested by
Sir Walter Phillimore, as it appears to me, will meet what
Dr. Govare probably rightly considers as a necessary requirement
for the due and proper consideration of the important matter
which is before the Association. It will also, I think, meet the
requirements of Mr. Miller, who thinks, perhaps rightly, that the
matter should be more fully discussed before the Association
which he more particularly represents ; and if those requirements
are met — I mean the requirements particularly referred to by
Dr. Govare and Mr« Miller — I cannot help thinking that the
subject will be npe to be dealt with when this Association meets
again twelve months hence ; and, therefore, inasmuch as our time
is somewhat limited and there are other matters which have to be
discussed, I suggest for your consideration that this resolution of
Sir Walter Phillimore might well be accepted as the wisest and
best course to be followed. It will not pledge anybody here to
any definite opinion upon the subject ; it will give an opportunity
for the rules drafted by the Committee and now before us to be
put into intelligible French ; and it will give a full opportunity for
all persons interested to consider them at leisure, and to form an
opinion upon them ; and there will then be the final opportunity
twelve montlis hence for those persons who do not agree with
them to express their dissent and to give their reasons for such
dissent I must say I feel myself that if the thing were hurried
through at thb meeting, it probably would not be satisfactory. I
cannot help thinking that if the resolution proposed by Sir Walter
Phillimore is adopted the objection I have referred to of hurrying
the matter wDl be removed, and everybody will have an oppor-
tunity later on of expressing his assent, or, if he dissents, giving
his reasons for that dissent I propose, therefore, with your
consent, to put the resolution, proposed by Sir Walter Phillimore
and seconded by M. Autran, to the meeting.
( »7o )
Mr. Miller : May I say I quite agree with the proposal made
by Sir Walter Phillimore and M. Autran, and I have great
pleasure in withdrawing the proposal I submitted to the meeting.
Mr. Dent: There is one little word I would like to have
deleted from the amendment proposed, and that is in regard to
the amendments to be sent in ** forthwith," I think we should
have time to go into it
Sir Walter Phillimore : " Forthwith ** only means that you
should do it as soon as you can, and not forget it
Mr. Dent : There is another thing, and that is that a copy of
this should be sent to all interested parties — the Chamber of
Shipping, and Lloyd's, and all those who are parties interested in
this matter.
The Chairman : I think that will be done.
Dr. GovARE: I also accept the proposal and withdraw the
proposition I made this morning.
Mr. Angier : I hope copies will be sent as suggested.
Sir Walter Phillimore : Perhaps, if this resolution is passed,
Mr. Dent or Mr. Angier will propose as a subordinate resolution
that this be communicated to such bodies as are named
The Chairman : I do not think another resolution will be
necessary, but if those gentlemen who are interested in the matter
will kindly communicate to the Secretaries of the Association the
names of any bodies to whom they think the report of the
Committee ought to be sent, I am quite sure arrangements can be
made to send copies. There will be no difficulty about that It
need not form the subject of a resolution, but it will be done as a
matter of course.
Mr. T. G. Carver: May I suggest that a report of our
transactions might go with it, showing the discussion as welL
( 171 )
The Chairman : I see no reason why not only the report of
the Committee, but this discussion which has taken place to-day,
should not be sent to the bodies which any gentleman present
here may suggest as bodies interested in the matter.
Mr. Alexander : May I explain that it is the practice of the
Executive Council after every one of our Conferences to consider
what is to be done with regard to all the subjects voted upon with
a view of bringing them to the notice of bodies interested and
take such proceedings as may seem desirable, and the Executive
Council will only be too glad to have any suggestions on that
point,
Mr. Angier : I am afraid if it is left to a suggestion, as we are
all busy men, it may not be attended to, and I would rather see it
added to the resolution.
The Chairman : It is easily done if every gentleman will hand
in the name of the body he desires a copy should be sent ta
Sir Walter Phillimore : With your permission I will move
as a rider to the resolution that the names be added.
The Chairman : The resolution is moved by Sir Walter
Phillimore and seconded by M. Autran, and, unless there is some
dissent from it, I will ask you to carry it.
The resolution was carried and adopted.
The following names of bodies interested in the matter were
then handed in : —
Chamber of Shipping of the United Kingdom.
Lloyd's.
General Shipowners' Society.
Chambers of Commerce of Amsterdam, Hamburg, Rotterdam^
Antwerp, Dunkerque, Havre, Rouen, Nantes, La Rochelle,
Bordeaux, Marseilles, Genoa, Naples, Venice, Trieste, and Paris.
Comit^ des Asstireurs Maritimes.
( 172 )
Liverpool Underwriters' Association.
Liverpool Shipowners' Association.
North of England Shipowners' Association.
National Board of the United States.
New York Board of the United States.
Boston Board of the United States.
Philadelphia Board of the United States.
Baltimore Chamber of Commerce.
Vessel Owners' National Association.
Philadelphia Vessel Owners* Association.
San Francisco Chamber of Commerce ;
and any other body which the Secretaries may think desirable.
Sir Walter Phillimore : I beg to move that a copy of the
report and of the proceedings of the Conference be sent to the
various bodies named and any others which the secretaries think
proper to add to that list.
The motion was seconded by Mr. Dent, put, and adopted.
The French translation made by MM. Autran and Govare b as
follows : —
RfeGLES DE L'ASSURANCE MARITIME.
{Approuvkes par la Commission Anglo-Amtricaine nommke d
Buffalo.)
I. — Perte Totalk.
1. L'assurance sur perte totale comprend k la fois la perte
totale matdrielle et la perte totale "par definition,"* k moins
que la police n'indique que la commune intention des parties
a 6t€ de donner une autre signification k ces termes.
2. II y a perte totale mat^rielle toutes les fois que, par I'effet
d'un risque convert par l'assurance, la chose assur^e est d^truite
ou avarice au pomt de perdre sa nature propre.
* Nous avons essaye de rendre par ces mots I'expression anglaise : " Con-
structive total loss."
( 173 )
3* Quand le propri^taire de la chose assur^, par Teffet d*un
risque couveit par Tassurance, en a ^t^ entikrement d^possdd^,
soit qu*il n*y ait aucun espoir vraisemblable qu'il rentre en
possession, soit qu'il ne puisse rentrer en possession qu'en payant
des sommes qui d^passeraient la valeur recouvr^e et qu'il n'est pas
tenu de payer pour une autre cause, il y a perte totale mat^rielle,
alors m^me que la chose existerait encore.
4. II y a perte totale '* par definition " toutes les fois que par
Teffet d'un risque convert par Tassurance le propri^taire est
pendant un temps ind^fini d^poss^dd de sa chose ou privd de
son administration et de son usage.
5. II y a perte toule " par definition " d'un navire, toutes les
fois que, par I'effet d'un risque convert par I'assurance, il est
avarie ou mis dans une situation telle que la somme n^cessaire
I le remettre en la possession de I'armateur et k le rdparer,
ezcederait les trois quarts de sa valeur h. Yitai sain avant le
sinistre.
(a) Les frais k faire pour rentrer en possession du navire
et le rei>arer doivent ^tre ^valu^s en tenant compte
des drconstances k I'^poque k laquelle se rdftre cette
evaluation.^ On y comprendra les frais des reparations
provisoires qu'il est prudent de faire et la conduite k un
port pour y effectuer les reparations; aussi toutes les
depenses necessaires pour &e procurer des fonds; mais
pas les gages et vivres de I'equipage au port de reliche.
(d) Dans I'etablissement de cette comparaison entre la
valeur et les frais il ne sera fait aucune deduction du montant
des reparations soit pour difference du vieux au neuf, soit
pour les contributions d'avaries communes qui ont ete k la
charge d'autres interesses relativement au coiit des reparations ;
mais on deduira les contributions payables par d'autres
interesses relativement aux frais ou sacrifices qui ont ete faits
ou encourus posterieurement k I'epoque k laquelle se ref^re
revaluation.^
» Voir Riglc 7.
( 174 )
(c) Dans ce calcul, il n'y a aacun compte k tenir de la
valeur du navire portde dans la police, h. moins de convention
expresse et contraire k cet ^gard.
6. II y a perte totale '* par definition " de la marchandise dans
les cas suivants : —
I. Quand des marchandises, par Teffet d'un risque couvert par
I'assurance, sont laissdes dans un port en de^a de leur destination,
soit parce qu'elles ne peuvent 6tre transportdes plus loin, soit
parce que si elles continuaient le voyage elles n'arriveraient pas
k destination en ^tat d'etre vendues sous la qualification en
laqueDe elles ont ^t^ assurdes ;
IL Quand des marchandises, par Teffet d'un risque couvert
par I'assurance, sont perdues ou avarices jusqu'k concurrence des
trois quarts de leur valeur ossurable ;
III. Quand, par Teft'et d'un risque couvert par Tassurance, le
navire est devenu une perte totale mat^rielle ou par definition,
que les marchandises ne sont pas expedites en execution du
contrat original de transport et qu'elles ne peuvent toe amen^es
k destination qu'au prix de d^penses qui exc^deraient les trois
quarts de leur valeur brute k Tarriv^e, d^uction faite des firais de
vente.
L'^valuation de ces d^penses comprendra tons les frais
ayant pour but de rentrer en possession des marchandises et
leur conservation et le frdt de trsmsport qui serait k d^botirser
post^rieurement k IMpoque k laquelle se rdftre revaluation ; *
mais non pas les frais de sauvetage ou autres, ni les con-
tributions d'avarie grosse, encourus avant cette ^poque, par
rapport k ces marchandises.
7. Quand Favis de ddlaissement a 6t6 donnd k Tassureur ainsi
qu'il est exig^ ci-aprbs, il faut que revaluation, destinee k verifier
si la chose assuree est devenue nne perte totale par definition, se
refbre k la date de cet avis. Quand Tavis de deiaissement est
devenu inutile, cette evaluation se referera au jour de la vente ou
de revfenement qui a j-endu Favis inutile.
> Voir K^glc 7.
( 175 )
Avis de DClaissement.
8. L'assur^ ne pent d^aisser et demander le r^glement en
perte totaie que si la chose assurte est devenue ane perte totale
mat^elle ou par definition.
9. Quand il y a perte totale ''par definition" d'une chose
assoree, Tassur^ a droit au paieroent de toute la valeur assur^e
5*11 a reguli^rement donn^ avis k Tassureur qu'il d^laisse sa part
d'int&^t dans la chose assur^e. A d^faut de cet avis, Tassur^ n'a
droit qn'au rbglement en avarie particulibre, sauf dans les cas
mentionnes dans la Rbgle 10.
(a) L'avis doit £tre donn^ k Tassureur avec la diligence
qu'on peut raisonnablement exiger, aprbs reception par
Tassure de la nouvelle qui Finfonne de la perte; si cette
information est sujette k caution, on accordera k Tassur^ le
temps de la controler.
(V) L'avis peut Stre donnd de quelque fagon que ce soit.
mais doit clairement exprimer Tintention de Tassur^ de faire
deiaissement sans condition ni reserve.
10. Quand la part d'int^r^t de Tassurd dans la chose assur^e
a 6ti l^gitimement vendue avant que Tassurd n'ait eu Tentibre
opportunity de faire d^laissement — et en g^ndral quand Tassureur
n'auxait pn retirer un profit quelconque de Tavis de d^laissement,
s'il lui avait ^t^ donn^ — alors cet avis n'est plus n^cessaire et
m^me sans Tavoir donnd Taasttrd a droit an paiement integral de
la valeur assurde.
L'avis de d^laissement n'est pas non plus cx\g6 dans les
rapports d'assureur k rdassureur.
11. Les efforts tenths par Tassur^ ou Tassureur en vue d'^viter
ou de diminuer la perte de la chose assur^e^ ne peuvent en rien
bait echec an droit poor Tassure de ddlaisser et de r^clamer le
paiement integral ; et pour Tassureur de repousser le ddaissement
( 176 )
Effet du D£laissement.
12. Si le ddaissement de la chose assur^ a 6t6 accept^ ou s'il
y a perte totale mat^rielle ou *'par definition," Tassureur, en
^change du paiement integral de la valeur assur^, a droit k la
portion correspondante de tout ce qui subsiste de la part d'intdrSt
de Tassurd dans la chose assurde, a partir de la date du sinistre
qui a causd la perte; de m^me et dans la mdme proportion, il
sera subrogd h. tous droits et actions contre les tiers dont Tassurd
dtait investi k raison de sa part d'intdr^t ou de la perte de
la chose.
13. Si le navire, aprfes qu'il a 6t6 transf(fre k I'assureur comme
il vient d'etre dit, gagne un fr^t en continuant son voyage, ce Mi
ainsi gagn^ sera r^parti entre Tassureur et I'assur^ k proportion
des distances parcourues par le navire pour gagner ce fi-^t, avant
et apr^s le sinistre.
Si une partie du frSt a ^t^ pay^e par avance, Tassurd ne recevra,
dans la repartition du fr^t gagn^ par la continuation du voyage,
que la part qui, jointe k ce qu'il a re9u d'avance, compl^tera la
part proportionneUe lui revenant dans le fi-^t total.
Effet sur les Assurances sur Fr^t.
14. En ce qui conceme une assurance sur fr^t, est consid^r^e
comme perdue toute portion du fr^t attribute h Tassureur sur
corps, dans les circonstances ^nonc^es dans Tarticle 13.
15. Quand le fr^t d'un voyage est assur^, il y a en g^n^ral perte
totale de ce fr^t, si, par Teffet d'un risque convert par Tassurance,
la cargaison est devenue une perte totale materielle ou ''par
definition '' et qu'on ne pent avec profit lui substituer et conduire
h destination d'autres marchandises payant un fir^t
Quand le fr^t assure est etabli sur poids specifique ou selon la
charte-partie, il y a perte totale si aucune portion du fr^t d'apr^
le contrat de transport ne pent 6tre gagnee.
Dans les deux cas il y a perte totale du fr^t, si par Teffet d'un
risque convert par Tassurance, il y a perte totale — ^matehelle ou
( 177 )
"par definition" — da navire et qu'aucune portion du chargement
ne peut 6tre conduite k destination, si ce n'est au prix de
depenses pour Tarroateur qui excdderaient le fr^t k recevotr k
destination. Les depenses qu'il s'agit d'^valuer dans ce cas
comprendront tous les frais d'expMition des marchandises qui
incomberaient k I'armateur k partir du moment oh le voyage a
M rompu.
Mais chaque fois qu'il y a Heu k paiement d'un Mi pro-
portionnel il n'y a pas perte totale du Mt
II. — ^AVARIE PARTICULliRE AU NaVIRB. DAdUCTIONS.
1 6. Pour ^tablir le rfeglement d'avarie particulifere k un navire,
lesd^uctions du montant des reparations pour difference du vieux
an neuf, seront celles pr^vues par la Rbgle XIII des Ragles
dTork et Anvers sur Tavarie grosse.
IIL— Effet de la Negligence et de lInnavigabilitE, &a
17. L'assureur ne rdpond pas des pertes ou avaries occasionndes
par un acte volontaire de Tassurd, m£me si la cause immediate
est un risque convert par Tassurance.
18. L'assureur ne r^pond pas des pertes ou avaries dont la
cause immediate est un vice propre, la faiblesse de nature ou le
nuuvais etat de la chose assuree, ou de la chose dont depend la
secuhte de la chose assuree.
19. Dans toute assurance d'un navire, d'une cargaison ou de
tout inter^t reladf k un navire, Tassure garantit ce qui suit :
(i) Que dans le port oh Tassurance commencera k produire
effet, toutes les precautions convenables seront prises pour mettre
le navire en bon etat d'y sejoumer ;
(2) Que toutes les precautions convenables seront prises pour
mettre le navire en bon etat bien gree et arme et muni des docu-
ments necessaires pour son voyage, k chaque depart d'un port
au cours de Tassurance. Quand le voyage comprend plus d'un
escale, il sufiira toutefois que ces precautions, relatives k Tarme-
N
( 178 )
ment et aux documents, soient prises au commencement de
chaque escale et pour cette escale.
£n cas d'infraction k cette garantie, Tassureur ne r^pondia pas
des pertes ou avaries qui en sont la consequence, m^me si la
cause immediate est un risque convert par Tassurance. Mais
Tassurance n'est pas subordonn^e k Taccomplissement de cette
obligation de garantie ; elle n'est pas invalid^e par son infraction
sauf dans les conditions ci-dessus spdcifi^es.
Sauf ce qui est dit ci-dessus, I'assur^ ne garantit pas le bon ^tat
du navire.
3o. Except^ pour ce qui est prdvu par la Rbgle 19, Tassureur
est responsable de toute perte ou avarie accidentelle de la chose
assur^e, dont la cause immediate est un risque couvert par
Tassurance, m^me si elle a 6t6 occasionn^e ou augment^e par un
negligence de Tassur^, ou par une negligence ou un acte volon-
taire de ses prdpos^s ou agents.
IV. — Assurances Doubles.
21. II y a double assurance quand un intdr^t est assure contie
le mSme risque par le m^me assure k deux ou plusieurs assureurs
pour des valeurs qui, totalisees, excbdent sa valeur agreee ou
assurable.
En pareil cas I'assure pent se faire indemniser d'une avarie
par Tune des polices qui la couvrent, dans n'importe quel
ordre, k moins qu'il n'ait dejk re9u une indemnite pour cette
avarie, calcuiee sur la valeur portee dans cette police.
3 J. Dans un cas de double assurance, le ou les assureurs qui
ont ddment regie une avarie sont en droit d'exiger, des assureurs
des autres polices couvrant cette m£me avarie, une contribution
de manibre k repartir sur la totalite la somme payee, comme suit : —
(a) Si les polices ne contiennent pas d'evaluation ou portent
toutes la m^me evaluation, la contribution se fera proportion-
nellement aux sommes assurees.
(3) Si les evaluations des polices different, alors :
( 179 )
(i) en cas d'avarie particuli^y la contribution se fera
proportionnellement aux sommes couvertes dans les dif-
ftfreates polices par rapport k cette avarie ;
(2) en cas de perte totale, les autres polices en proportion
de leurs responsabilit^s respectives quant k cette perte totale
ne contribueront sur la somme d^jk r^gl^ que pour la
portion qui correspond k la valeur simultan^ment couverte
par les autres polices.
23. Uassur^ ne pent demander aucun remboursement de
primes en cas de double assurance, une fois que le risque a
commence k courir.
The following is the text of the Belgian Report : —
Rapport de la Commission Bblge.
A LA demande de Tlntemational Law Association, FAssociation
beige pour Tunification du droit maritime a ddsign^ une com-
mission charg^e d'examiner les propositions relatives aux as-
surances maritimes ^man^es de M. Carver et ayant fait I'objet
d'un premier examen k la confidence de Buffalo.
Cette commission a ^t^ compos^e comme suit :
MM. Ch. Le Jeune, Vice-President de FAssociation beige pour
Funification du droit maritime,
Emile Ceulemans, Juge au tribunal de commerce d'Anvers,
Jos. DiNEUR, assureur^
W. Engels, assureur,
FRAN9, Genicot, dispacheur,
Louis Franck, avocat, secretaire g^ntoil de FAssociation,
H. Fester, courtier d'assurances,
Arth. Morren, anden President de la Chambre arbitrale pour
grains et graines,
Jos. Van Geetruyen, assureur,
Albert Van Steenberghe, secretaire adjoint de FAssociation.
N 2
( iSo )
Aprbs diverses deliberations M. Ch. Lx Jeune a bien voulu
se charger de formuler Topinion de la commission, bas^e sur les
propositions relat^es pages 17 J et suivantes, du rapport de
r International Law Association, Conference de Buffalo, 1899.
L — Perte totale.
Sous ce titre sont etablies des regies qui distinguent la perte
totale de la perte partielle et qui sont accompagndes de dispositions
relatives k la recevabilite, k la forme et aux effets du ddaissement,
ainsi qu'k la subrogation de Tassureur k Tassur^ indemnise.
La perte dite totale est celle oh Tassurd pent recouvrer de son
assureur la somme totale assur^e. Ce droit ne se limite pas en
cas de destruction ou de d^possession complete, il s'dtend k
d'autres eventualites assimil^es, rang^es sous le nom de perte
totale relative (constructive total loss) par opposition aux premieres
qui constituent la perte totale absolue (actual total loss).
Cette assimilation ne rencontre pas dans les lois et les polices
des divers pays la m6me interpretation, et sans entrer dans des
details particuliers quant k ces differences, il convient de signaler
la principale. C'est celle oh le droit de deiaissement est ouvert
pour la perte partielle, lorsque celle-ci atteint une importance
determinee, fixee aux trois quarts dans un grand nombre de legisla-
tions (notamment en France, Belgique, Hollande, Italic, Espagne)
et qui m^me aux Etats-Unis dans des cas particuliers est fixee k
la moitie.
C*est 1^ evidemment une derogation aux principes d'indem-
nite, mais une derogation profondement enracinee et qui pour
ceux qui en ont joui represente un mode pratique et expeditif
de liquidation, justifie par une grande catastrophe, et repondant
mieux que tout autre aux exigences du commerce maritime.
Quelle que soit Topinion que Ton puisse avoir k cet egard, U
ne faut pas oublier que Ton se trouve ici devant des lois et des
usages seculaires, dont rien ne fait prevoir Tabandon. L'inter^t
theorique d*une legislation plus conforme aux principes d'in-
demnite, rencontrerait sans aucun doute une opposition opiniitre,
( i8i )
fond^ sur les traditions du pass^ et sar I'int^r^t de I'une des
parties contractantes.
Consid^rant cet ^tat de choses, il a sembl^ que la question
da d^ssement n'offirait pas un terrain fivorable k I'unification
des conditions d'assurance. Les vues varices qui existent k ce
SQJet et les solutions complexes que suscite la question ont engagtf
la Commission k ^mettre un avis contraire k Tadoption des pro-
positions intitul^es : de la perte totale, k moins que les intdress^s
anglais ne puissent se decider k admettre le principe du d^aisse-
ment en cas de perte ou avarie de trois quarts.
II. — Perte partielle du Navire. Deductions.
La Commission se rallie aux deductions propos<5es pour
diffi^ience du vieux au neuf, suivant la Rbgle XIII des Ragles
dTork et d'Anvers, tout en faisant remarquer que les parties,
dans le contrat d'assurance, n'ont pas les m^mes raisons que dans
le rfeglement d'avarie commune, de se lier k des regies uniformes.
III. — De l'InnavigabilitE du Navire, de la Faute
DE l*Assur£, et de leurs Effets.
La validity de Tassurance est pour Tassur^ une n^essittf
primordiale. L'ex^cution du contrat qui en depend, n'int^resse
pas seulement Tassur^ primitif, mais le cessionnaire du contrat
Stranger k sa conclusion et porteur de bonne foi du titre.
11 est de principe g^n^ral que Tassurance est nulle lorsqu'il
y a de la part de Tassur^, fraude, reticence ou fausse declaration
et k cet dgard il y a unitd de vues.
Mais certaines legislations vont plus loin. Elles attachent k
Tezistence du contrat certaines garanties implicites. C'est ainsi
qu'en Angleterre et aux Etats-Unis toute assurance maritime
implique la garantie de T^tat de navigability du navire. La
preuve d'innavigabilit^ annulle le contrat lors mdme que cette
circonstance n'aurait pas influ^ sur le dommage et cette nullity
ne s'applique pas uniquement au navire assur^, mais aux facultt^s
( i82 )
charg^es siir le navire. L'assur^ sur marchandises devient done,
vis k vis de son assureur, garant de faits qui ^happent complete-
ment k son action et m^me k son contrdle. La moindre infrac-
tion aux multiples exigences de T^tat de navigability I'expose
k se voir privd de toute indemnity L'injustice d'une pareille
situation est flagrante, et ses consequences sont des plus graves
dans I'ordre des transactions Internationales, qui exigent la
s^curitd
Les regies fonnul^es ont pour but la modification de cette
legislation s^v^re, par I'adoption de dispositions se rapprochant
de celles en vigueur sur le Continent
Uetat d'innavigabilitd n'est pas en soi une cause de nullity
sur le Continent
Mais il convient au point de vue de ses consequences de
distinguer entre le navire et la cargaison.
Pour le chargeur Tinnavigabilite est un cas fortuit qu'il ne
peut ni pr^voir ni ^viter. Le dommage qu'il ^prouve par cette
cause, pour lui purement accidentelle, doit £tre consider^ comme
Tun des risques assumes par Tassureur.
Pour le proprietaire du navire au contraire Finnavigabilite, en
principe, suppose une faute, une negligence. Cette faute peut
6tre commise soit par lui-m£me, soit par les preposes dont il
repond, soit par d'autres personnes, notamment par les con-
structeurs du navire.
Si la faute est commise par Tassure lui-m6me, notre commission
est d'avis qu'elle ne doit pas £tre couverte par Tassurance.
Elle n'entratne pas la nuUitd, pas plus en matibre d'innavigabilite
qu'en une autre mati^re, mais ses consequences ne doivent pas
fitre garanties par Tassureur. II n'y a pas lieu, en matibre de
faute personnelle, de distinguer entre Facte intentionnel ou non
intentionnel, ni entre la fraude, la faute lourde, ou la simple
negligence ou faute legfere. A ce sujet nous ne pouvons nous
rallier aux propositions formuiees.
S'il s'agit au contraire des actes des preposes de Tarmateur, il
est rationnel que I'assurance de la baraterie de patron, de la faute
et de ia negligence du capitaine et de requipage, s'etende k
( i83 )
rinnavigabilitd dont ils sont coupables. C'est la solution qui
d^ule, dans les divers pays, autres que TAngleterre et les Etats-
Unis, de la garantie de ces risques. Une exception justifi^e et
que Ton rencontre fr^quemment, c'est que cette garantie ne
couvre pas les actes doleux ou frauduleux du capitaine choisi par
rarmateur assur^. Quant aux pr^pos^s et employes autres que
ceux faisant partie de Tdquipage, rien n'emp£che de les com*
prendre dans cette garantie dans le cas oh ils accomplissent des
tiavaux k bord dn navire. Mais ce serait aller trop loin k notre
avis que d'adopter des rbgles par lesquelles Tassureur pourrait
^tre tenu des actes des " agents " de Tarmateur. Tout au plus
pourrait-on les assimiler au capitaine choisi par Tassur^ et exclure
ainsi de I'assurance les sinistres dus k leur dol.
Au milieu des multiples conditions que n^cessite Vit^X de
navigability, 11 reste k envisager celles qui par suite des trans-
fonnations de la marinci ne peuvent pas toujours 6tre remplies,
malgr^ toute la diligence de Farmateur. II arrive que Ton ne
puisse reconnaitre I'existence de certains vices caches, une im-
perfection interne de Tarbre de couche, d'une pi^ de machine,
nn d^&ut k un fil dectrique ou k quelqu'autre organe du navire.
Uaimateur est-il en faute en pareil cas? Thdoriquement oui,
mais il faut avouer que lorsque dans les limites de Thumaine
sagesse et prudence, il a fait ce qui ^tait possible pour mettre
le navire en 6tax de navigability, cette faute, si e'en est une, est
excusable. Dans la pratique des rbglements de sinistres, c*est k
cette conclu^on que Ton aboutit g^n^ralement lorsque les
parties s'en tiennent plutdt k Tesprit qu'k la lettre du contrat
II vaut mieux ne pas laisser le d^at ouvert, et admettre comme
accidentels et fortuits, les dommages occasionn^s par les vices
cach^ dn navire, lorsque Farmateur n'a pas manqu^ de diligence
dans Taccomplissement de ses devoirs.
Faut-il d^finir ^troitement Tinnavigabilitd et s'attacher k des
distinctions, selon que le navire s^journe dans le port ou est en
couis de voyage? Nous ne le croyons pas. En adoptant les
pnncipes indiquds plus haut, Tinnavigabilitd devient tine question
de fsut, d'appr^ciation*subordonn^e aux circonstances. C'est une
( i84 )
faute qui comme d'autres fautes se resume aux consequences
qu'elle produit
II serait aussi pr^ff rable k notre avis, dc ne pas s'occuper dans
ces rbgles de la question du vice-propre en le m^lant k T^tat
d'innavigabilit^, ce qui am^ne une certaine confusion.
IV. — Dk la double Assurance.
Les deux systbmes en vigueur se contredisent absolument.
D*une part, en Angletene notamment, I'assurd a le droit en cas
de double ou multiple assurance, d'^puiser son droit prbs de
ceux de ses assureurs qu'il prdf^re. A leur tour ces assureurs
sont subrog^s h. ses droits vis k vis des autres assureurs intdress^s,
et en appelant ceux*ci au partage des responsabilit^s, ils sont
fond^s h faire une repartition du dommage entre tous les
assureurs, k proportion de leurs engagements et de leurs responsa-
bilit^s. II y a done deux rfeglements : le premier entre Fassur^
et les assureurs de son choix, le second qui ne regarde que les
assureurs ** inter se."
Dans la majority des autres contr^es, en cas de double assur-
ance, la premiere en date est seule valable. On suppose ici que
les m£mes choses sont deux fois assur^es, pour Tentibre valeur et
pour les m^mes risques. Le Code allemand, de m^e que la
jurisprudence de certains pays, accorde la priority, quel que soit
Tordre de dates, k I'assurance faite par le propri^taire. De m^e
cette priority peut exister pour celle du commettant, ordonn^e ou
confirrade par le propri^taire. II reste k voir ce qu'il faudrait
decider, si des int^ress^s divers (en cas par exemple de compte k
demi), ou des cr^anciers, avaient assur^.
Une autre source de conflits r^sulte de la co-existence
d'assurances ordinaires, et d'assurances faites en vertu de
polices d'abonnement. La difficult^ de determiner un ordre
de dates applicable aux circonstances est parfois trbs grande en
pareil cas.
Le grave inconvenient qui resulte des deux syst^mes en
vigueur, c'est que lorsqu'il existe des assurances doubles sous des
( >«s )
sjst^mes diffdrentSy il y a incertitude et danger pour les parties en
cause: Les assureurs sous le syst^me anglais ne pourront pas se
soustraire k leurs engagements, mais ils se verront privds d'appeler
au partage leurs co-assureurs ayant souscrit sous Tautre syst^me,
tout au moins si ceux«^i sont seconds en date. Quant k Tassurd,
ne lui opposera-t-on pas la varidtd des systbmes pour d^liner une
responsabilitd mal ddfinie et contradictoire ?
Notre Commission jugeant runiformitd hautement d^irable,
s'est ralli^ au syst^me anglais, qui est celui propose, k cause de la
simplicity de solution qu'il offire pour le rfeglement entre Tassur^
et rassureur. D'une part Tassurd doit la prime entibre k tout
assureur dont le risque a couru, d'autre part il a le droit de
choisir entre les garanties qui sont en cause. Quant k I'assureur
n ne sera pas I6s6f puisque la responsabilitd qu'il avait assumde, et
dont il a per^u le prix, ne sera pas augmentde. Elle sera au
contraire sujette k Stre diminude, Tassureur choisi pouvant appeler
ses co-assureurs k contribuer k la perte, k sa ddcharge.
Uassurd pourra dpuiser le maximum de ses recours. Les
conditions des assurances ne sont pas toujours les m^mes. Tels
risquesy compris dans une police, peuveut ne T^tre pas dans une
seconde police, qui en revanche en garantit d'autres. Diverses
causes peuvent done justifier Tassurd de s*adresser k deux
assureurs ayant chacun garanti la valeur entibre et de leur rd-
clamer k chacun des pertes ayant des causes diffdrentes. II n'y
a double assurance qu'en tant qu'il y ait unitd de risques. S'il y
a diversity il ne faut considdrer comme concurrentes que les
garanties qui dans les deux contrats sont dgales, les autres doivent
etre traitdes inddpendamment et isoMes, car pour elles il n'y a pas
double emploL
Cest dans le cas oh se fait la repartition entre assureurs de
tous les dommages rdcupdrds par Tassurd, que la ventilation
demande quelqu'attention.
( 186 )
Par les rigies proposes pour cette ripartition on efivisage :
i^ Le cas oh la valeur d'assurance n'est pas fix^e, de mtoie
que celui oh elle concorde dans les diverses polices.
£n pareils cas, la repartition sera proportionnelle aux
montants assures respectivement.
3^ Le cas oh la valeur d*assurance est diversexnent fix^ dans
les polices.
Des solutions diffc^rentes sont proposes dans cette ^entualit^.
S'il y a perte totale, la repartition sera proportionnelle k la
part qui, dans chaque police, forme le montant doublement
assure, la communaute n'existant que dans la mesure de la partie
des evaluations respectives, qui s'applique egalement aux diverses
polices.
S*il y a par exemple deux polices Tune de ^2000 valeur agreee
et assuree et Tautre de ;;^3ooo valeur agreee et assuree on procMe
par elimination.
Uassureur de ^3000 qui aurait paye toute la perte k Tassure
supporterait seul ;;^iooo, il resterait alors deux assurances egales
de ;;^30oo, soit en. tout ;^4ooo, entrant en concours pour les
;;^3ooo restantes.
La seconde solution, s*il y a perte partielle, est de repartir la
perte k proportion des obligations qui, pour les divers assureurs,
decoulent des evaluations differentes.
On remarquera que si en Angleterre, la valeur d'assurance
convenue entre parties fait loi, il n'en est pas de m^me partout
On peut done se trouver devant un conflit de lois, d'autant plus
grave qu'en certains pays il y a interdiction d'assurer au deli
d'une certaine valeur, et nullite encourue. Pour cette raison les
cas d'evaluations diiferentes presentent des difficultes.
Ce qui est trbs desirable c'est que la rbgle soit uniforme dans
les divers cas. La diversite de valeur est, il faut le reconnaitre, un
point d'ordre particulier, mais justifie-t-elle la diversite des regies
proposees ? Ne suffit-il pas de prendre pour point de depart la
communaute de risques et de conditions d'assurance, eiiminant de
cette communaute ce qui etant compris dans une des polices ne
( «87 )
Test pas dans I'autre et r^partissant le dommage k proportion des
sommes assur^es pax chacun? II s'agit en r^it^ d'assurances (kites
de bonne foi — ^les seules suppos^es en cause — et d*un r^glement
entre assureurs. N'est-il pas admissible que revaluation la plus
dev^e, celle qui sera toujours invoqu^ par I'assur^, soit tacitement
accept^e par tons les assureurs, comme s'O leur eut ^t^ fait une
d^laration, que la soinme assur^ par chacun porte sur pareille
6raluation? II ny aurait Ut, semble-t-il, que la reparation d'un
oubli, car 11 est normal, en cas d'augmcntation de la valeur
d'assurance, d'agir ainsL Si au lieu de rdpartir le dommage k
prorata des montants assures sur la base d'une Evaluation unifi^e,
on le r^partit k prorata des obligations ddcoulant d'Evaluadons
m^aleSy le systfeme se complique. En tout cas, on peut se rallier
I Tun ou Fautre systbme, mais il convient de n'en pas avoir deux
differents, le premier pour la perte totale, le second pour la perte
paxtielle.
Nous signalerons aussi, Futility qu'il pourrait y avoir k
stipuler, que TassurE qui a connaissance d'assurances multiples,
soit tenu d'en faire la declaration en cas de sinistre. II est juste
que son silence ne soit pas une cause de prejudice pour Tassureur
qui a paye le dommage et c'est k celui-ci que cette declaration
devrait 6tre faite. De plus, pour eviter des conflits, les assurances
I attribuer k un assure doivent ^tre toutes celles faites par lui, ou
par des tiers avec ou sans mandat, dans un m£me but
Quant k la valeur de conventions auzquelles ne p>articipent
pas les parties intEressees, elle dependrait uniquement de leur
adoption generale. II est evident qu'une repartition proportion-
nelle entre assureurs suppose un moyen d'obliger des assureurs
qui ne sont pas signataires du contrat execute k acquiescer k un
prindpe qui peut leur £tre desavantageux.
Ch. Le Jeunb.
Anvers, 26 j'ui/la 1900.
( i88 )
Upon this Report Mr. Carver presented the following: —
Notes upon the Report of the Belgian Committee.
As regards total loss, the one difficulty pointed out by the Report
of the Belgian Committee has, it may be hoped, disappeared.
The Insurance Rules, as now proposed by the English and
American Committee, adopt the principle that in cases of damage,
whether to ship or to cargo, the assured may abandon and claim
pa)rment of a total loss whenever the damage amounts to three-
fourths of the former undamaged value.
II
As regards the effect of negligence, fraud, and unseaworthiness,
upon the rights of an assured to indemnity, somewhat formidable
difficulties present themselves.
The Report indicates that the insurer ought in no case to be
liable for losses which have been contributed to by personal
negligence of the assured ; that as regards servants of the assured,
negligence of some classes of servants should vitiate his claim,
while negligence of others should not ; and that fraud of servants
chosen by the assured should always vitiate it. And the Report sug-
gests that negligence producing unseaworthiness of the ship
should be treated in the same category as negligence in other
matters.
Under the proposed rules, on the other hand, the fundamental
question is, Has the loss resulted proximately from a peril in-
sured against? If it has, the circumstance that the peril has
operated owing to negligence of the assured, or his servants, is
regarded as immaterial; unless, indeed, the ship has sailed un-
seaworthy in consequence.
And, as regards fraud, though the insurer is not to be liable
for losses brought about by any wilful act of the assured himself,
no distinction is made between neglects of his servants and wilful
acts done by them, to which he is no party.
( i89 )
The following questions then have to be considered : —
1. Should there be a distinction between losses by perils
insured against due to negligence, and losses not so
due?
2. Should there be a distinction between personal negli-
gence of the assured and negligence of his servants or
agents?
3. Should there be a distinction between one class of servants
and agents and another ?
4. Should fraud of a servant vitiate the claim of an assured ?
1. The object of insurance is to cover accidental losses. It is
immaterial to the assured whether the accident has been brought
about by negligence. He wants to be protected against its conse*
quences. There is no rule or need in law or in morals standing
in the way of that
The distinction between negligence and fraud is here all-
important An assured must not take advantage of his own fraud.
No body of rules such as this could properly allow him to do
so. But carelessness, failure of skill, and imprudence, are among
the ordinary causes which lead to losses by marine perils. And
there is no reason why indemnity for such losses should be ex-
cluded, merely because they have been so brought about To
exclude them would be to shut out the indemnity which every
prudent shipowner or merchant is sure to want. It would
therefore be to make your rules inappropriate to the needs
which have to be satisfied.
2. Ought there to be a difference when the negligence has
been of the assured personally ?
Remember always that we exclude fraud of the assured ; all
loss caused intentionally, or so recklessly that the fair inference
is that the assured was indifferent whether his action resulted in
a loss or not Remembering that, why should there be a
difference between his neglects or imprudences, and those of
others whom he has employed to do his work for him ?
( I90 )
If there is to be an obligation on the assured to conduct the
adventure with care, a failure of care by servants should have the
same effect as a personal failure. Why is an assured who navi-
gates his own ship to be in a different position from one who
employs a master? If the ship is lost by bad navigation, the
underwriter should be responsible in both cases, or in neither.
Again, why should an assured who personally looks after the
equipment of his ship, or the stowage of her cargo, be in a different
position from one who leaves all sudi work to others ? Why is
the small shipowner who works himself to be worse off, as regards
his insurances, than the man who works a large line through his
superintendents, from the security of an office ?
The difficulty in applying fairly such a distinction between
personal acts and acts of agents is that there is no obligation to
act personally. As towards insurers, any particular act of the ad-
venture may be done by the assured himself or by others, as he
chooses. To make the insurer's liability turn upon the chance of
who has done that act, is to introduce a needless uncertainty and
inequality.
Either an insurer should be allowed to assert that careful con-
duct, in navigation or other matters, is a condition of his obligation,
or he should not If not, the fact that the want of care lay with
the assured himself should make no difference.
3. Then should there be a distinction between acts of the
master and crew, and acts of other agents ?
I understand that such a difference has been read into the
continental codes through the meaning given to the peril of
" barratry of the master and mariners."
The Belgian Report suggests that this distinction should be
extended to all servants doing work on board the ship. But no
reason is given for this. Perhaps the line suggested is rather
between those who are and are not engaged in fitting the vessel
out, rather than between those who work on board and those who
work on shore. If so, we get near to the condition of seaworthi-
ness, presently to be considered.
4. Fraud or wilfully illegal conduct of an assured must, as
( 191 )
has been said, vitiate his claim. But is that trae of similar
conduct on the part of his servants ?
It has not been so in England and the United States. The
peril of barratiy of the master and mariners has for long been one
of the ordinary perils insured against ; and that has been always
regarded by our judges as meaning fraudulent, criminal, or wilfully
illegal conduct of those servants, acting without the authority or
assent of the assured.
The Belgian Report suggests that fraud of the captain chosen
by the shipowner should not be covered That shows how
differently the peril of barratiy has been understood As we
understand it, the risk is of wrongful acts .of the master and crew
done hostilely to the assured It seems one which a prudent
owner may weU desire to have covered.
To sum up, it appears to be necessary for the usefulness of a
body of insurance rules, that they shall make insurers indemnify
against losses byperib insured against, even though occasioned by
negligence, want of skill, or imprudence. Also that, as towards
insurers, there is no valid distinction between negligent but
innocent acts of the assured, and similar acts of his servants.
But that, as regards wilful wrongful acts, the distinction should be
drawn ; and insurers should indemnify against losses by perils
insured against although occasioned by such acts, unless they
have been done by the assured himself, or with his authority or
connivance.
But to all this, in the English and American systems, there is
a qualification. Though the underwriter takes the risk of sea
perils, whether resulting from negligence or not, he does it subject
to the condition that the ship shall sail on her voyage sea-
worthy. That is a matter which is ordinarily within the power
of the assured ; or it has been presumed to be ; and an absolute
warranty by him of that fitness has been implied as a condition of
the policy of insurance.
That is, however, true only in voyage policies. When the
insurance is, say on ship, for a period of time, it has been settled
( 192 )
(in England) that no such warranty can be implied. For such an
insurance may attach at sea, when the ship's state must be un-
certain, just as easily as in port Though the reasons for safe-
guarding the insurer against unseaworthiness seem to be as
cogent in the case of time policies as in the case of voyage
policies.
The question then has been whether, and in what shape, this
warranty of seaworthiness ought to be preserved. It seems quite
unlikely that underwriters would be willing wholly to dispense
with it. At Buffalo resolutions were adopted as to the form in
which it should be maintained, of which the following are the
salient points : —
(i) The warranty should not be a condition of the policy. A
breach of it should not invalidate the policy, but should
merely relieve the insurer from the consequences of the
breach.
(2) The warranty should not be an absolute warranty of the
ship's fitness; but should be satisfied if all reasonable
care has been taken to make her fit
(3) The warranty should apply to all policies on ship; to
time as well as voyage policies. Though in the case of
a time policy it would only apply to sailings during the
cunency of the policy.
It is submitted that this is a fair and satisfactory solution of the
difficulty, and that it substantially accords with the obligations of
the assured as laid down in the European codes. Also it accords
with the obligations of the shipowner usually undertaken in
modem contracts of carriage, or imposed by modem legislation.
The question remains whether there should be any such
limitation of the insurer's obligation in insurances of caigo.
At Buffalo it was resolved that there should not But the
committee to whom the proposed rules were referred have felt a
difficulty about this. They suggest that the limitation should
apply to cargo as well as to ship.
In an ordinary insurance of goods, by a particular ship, it may
( '93 >
no doubt be said that the insurer generally has as much know-
ledge of the ship, and control over her, as the assured But a
very large mass of the cargo insurances are done by means of
contracts made in anticipation of shipments; by open covers;
under which the selection of the ships is left with the merchant,
the insurer having no right to object to the ship selected and
declared under the insurance contract.
Again many insurances are of cargo belonging to the owner of
the ship ; or to charterers who have control over the ship's equip-
ment, ^^., in the matter of fuel ; or who have control of the
portion of the ship, ^^., the refrigerated spaces, in which their
goods are carried.
It has therefore been thought desirable to qualify the insurer**
liability in relation to cargo in the same way as in relation to
ship. The seeming hardship of this as against the merchant, in
some cases, is of course mitigated by the fact that, where a loss
has occurred in consequence of unseaworthiness due to want of
care, the shipper can generally claim upon the shipowner.
In considering the rules, the inconsistency of the three-fourths
test for constructive total loss with the shipowners obligation
under his contract of carriage has been felt as a considerable
difficulty by the EngUsh branch of the Committee. Under the
rules proposed the shipowner will be enabled to abandon his ship
to insurers under circumstances which will not entitle him to
abandon the voyage as against the freighters. It is suggested
that this difficulty may be met by introducing words into contracts
of carriage giving the right to abandon the voyage when the ship
is a constructive total loss under these rule&
T. G. Carver,
( '94 )
Foreign Judgments.
The Chairman : Now, gentlemen, we will proceed to the next
matter which comes under consideration, and that is. Foreign
Judgments and the Report of the Committee upon this subject
Mr. G. G. Phillimore will address the Association upon this.
Mr. G. G. Phillimore read the following Report on behalf of
the Committee.
Foreign Judgments Committee Report.
Although the Committee has not been able to meet for
discussion of this subject and particularly of the question of what
is required to make competent the Court which pronounces a
judgment of which execution is sought in another country, it has
endeavoured to collect what it hopes may be thought valuable
materials for discussion by the Conference. These consist of
prints of the recent treaty between France and Belgium, which is
entitled " Sur la competence judidaire^ sur Tautoriik et r execution des
dicisions judidaireSy^ etc, (the work, I believe, largely of our friend
M, Lachau, of Paris, who took part in the Brussels Conference of
1895), and of a proposed ordinance of the British Colony of
Mauritius dealing with the enforcement and recognition in
Mauritius of foreign judgments, the work of our friend Mr. F. T.
Piggott, author of the well-known book on the subject, and now
Procureur-General for Mauritius. The latter has not been given
the effect of law, I am sorry to say ; but I think I am justified in
saying that the reasons stated by the Secretary of State for the
Colonies for his refusal to approve of it were that, in view of the
important effects throughout British dominions likely to be
produced thereby, the subject required lo be considered more fully
suid dealt with in a broader and more general spirit than it was in
the proposed law.^ We have also been favoured by Mr. J.
Alderson Foote, Q.C. (who was good enough to assist us with a
* The terms of this treaty and proposed ordinance are printed in the
Appendix A.
( 195 )
contribution on the subject at the Buffalo Conference last vear,
though unfortunately unable to be present himself), with a draft
of suggested rules of jurisdiction or compktence^ and also of a
convention suitable for adoption by two or mure countries.
Mr. Foote is again unfortunately prevented by domestic reasons
from being present here to-day, and he has asked me to express to
you his sincere regret at being unable to attend a meeting to
which he has long looked forward. These proposals have been
circulated among members of the Committee. Mr. Piggott is
unfortunately unable to be present, but the remarks which he has
been good enough to favour us with are in the hands of the
Conference.
I will give very shortly the effect of the other criticisms on the
suggested rules of jurisdiction. Professor Gabba (Pisa) says that
in his opinion they are practically convenient ; but as regards the
second rule it would be as well to have the signification of the
words ''a tort committed" explained, in order to restrain the
application of the rule to the cases where the debt of money
arises from a quasi delidum^ or from an action not implying a
criminal responsibility.
M. Bninard (Brussels), who took an active part in discussing
the subject at the Brussels Conference in 1895, regrets that he
has not time at present to give to the further study of the question,
but says that he cannot accept the proposals of Mr. Foote.
M. Franck (Antwerp) objects to the first rule of jurisdiction,
as being unknown to continental law, jurisdiction there being
held to require domicile, or permanent residence of the defen-
dant, and one therefore which the continental nations would never
adopt He approves the second rule ; he agrees to the thurd rule
if the words "voluntary appearance" mean ''appearance motu
pro^o without being summoned," as otherwise it leads to the
dilemma of either letting the plaintiff obtain judgment by de&uk
or obliging the defendant to recognise the competency of the
foreign Court ; but the rule, I think, means only that unless the
person enters an appearance to the action, without protest or
objection to the jurisdiction, he is not to be prejudiced. His
o a
— ' ( 196 )
objection to the first rule is, I think, met by Mr. Foote's second
note. Professor Corsi refers for his views to his ''Studies in
Private International Law."
August^ 190a
Mr. Phillimore: Mr. Foote's proposals, as well as the
explanatory notes thereon, have been translated into French, and
I think the best course will be if my friend Mr. Sinclair Cox will
read Mr. Foote's Draft Convention and then the Rules of
Jurisdiction.
Mr. K W. Sinclair Cox (London) then read the following
Convention and Rules and Notes in English, and Dr. Govare
read the first portion of the following French translation of the
Convention, the reading of the remainder of the translations being
subsequently dispensed with by the desire of the Conference.
DRAFT CONVENTION.
BY J. Alderson Foote, Q.C.
Convention between
AND
RELATIVE TO THE EXECUTION OF VORSION JUDGMENTS.
Whereas it is desirable that provision should be made for the
better execution within the territorial jurisdiction of each of the
Governments parties hereto of the judgments of the Courts and
Tribunals of the other Governments parties hereto :
Now therefore the Governments of
parties to this Convention, have agreed and do hereby agree each
of them severally with eveiy other of them as follows : —
Art. L — ^This Convention shall relate to and operate m respect
of the following judgments only, viz., judgments for the payment
of an ascertained sum of money, whether by way of debt, damages
or costs, by one person to another; and shall apply to such
( 197 )
judgments whether pronounced before or after the date of this
Convention.
A^oU.—lt is fogisctted that there is no pimctical chance of obtaining legisla-
tion, or eren agreement, at any rate for the present, except by confining the
attempt to the simple case of a judgment m personam for an ascertainrd sum
of moncfy*
ArU JL — It shall be competent for any person who has
obtained a judgment against another for the payment of money
from a duly constituted Court or Tribunal of one of the Govern-
ments parties hereto to apply to the Courts or Tribunals of any
other of the said Governments for execution of the said judgment
within the territorial jurisdiction of the Court applied to, and
such execution of the said judgment shall be granted accordingly,
subject to the provisions hereinafter contained, and to the law,
practice and regulations of the Court applied to.
Art IIL — In order to entitle such applicant to obtain the
execution applied for, it shall be necessary for him to show, to
the satls&ction of the Court applied to—
Note. — The clauses marked with * are taken from the resolutions of the
Milan Conference, 1883.
(i). That the judgment was pronounced by a tribunal having
jurisdiction to pronounce it according to the principles
of law recognised in the Court applied to ;
(i). At the Brussels Conference, 1895, the Association referred it to a
committee to codify rules of jurisdiction. If this cannot be done, the only
alternative seems that here adopted.
*(3). That the parties were duly cited ;
^(3). That, when the judgment was pronoimced by default,
the party against whom it was pronounced had been
made aware of the action and had the opportunity of
defending himself;
*(4). That the judgment contains nothing contrary to the
morality, the order or the public law of the State in
which execution is applied for;
( 198 )
*(5). That the judgment has become * [and remains at the
rime of such application]* executory in the country
where it was pronounced ;
(6). That the judgment has not been satisfied ;
(7). That there are reasonable grounds for believing that
there arc within the jurisdiction of the Court applied to
assets of the person against whom such judgment is
pronounced available for the satisfaction of such judg-
ment;
(6) and (7). These are obviously necessary, and have been adopted with
some differences by Mr. Piggott in the Mauritius Ordinance.
(8). That the person against whom it is sought to enforce
such judgment has received such notice of the applica-
tion as would enable him to appear on the hearing of
the same either in person or by an advocate practising
in the Court applied to.
(8). Perhaps superfluous, but it is undesirable to leave it open to contend
that these applications should be made ex parte.
Art IV. — ^The Court applied to shall thereupon grant execution
of the said judgment within its territorial jurisdiction, unless it
shall be shown or shall appear to the said Court —
(i). That there exists a remedy by way of appeal or other-
wise against the said judgment in the country where
it was pronounced, and that the person against whom
execution is sought has instituted or is bon&Jidc about
to institute proceedings in such country to obtain such
remedy; or—
(i). This is substantially borrowed from Mr. Piggott's Mauritius Ordinance.
If the appeal is by the lex ioci a stay of proceedings, or if a stay of execution
has been granted where the judgment was obtained, the case would faU within
Art. III. (5), tupra,
(2). That the judgment was obtained by fraud or collusion,
and that the person against whom execution is sought
has had no means or opportunity of setting aside the
( >99 )
judgment or obtaining other sufficient relief on such
ground in the country where such judgment was
pronounced.
(2). This raises the vexed question of re-opening a judgment alleged to
have been obtained by fraud in the nature, e,g,^ of perjury : tee note in paper
read at Buf&lo Conference, 1899, on the English decision in Vadala v. Lawet^
25 Q. B. D., 310 (Report, pp. 233, 234). That decision goes much further
tlian the suggestion in the text.
In either of the cases mentioned in this article, the Court
applied to may in its discretion refuse to grant the execution
applied for, or may grant the same conditionally, or may revoke
or stay such execution if already granted, and in each case upon
such terms and conditions as it may think fit
Art V, — When execution has been applied for and granted of
any foreign judgment under the provisions of this Convention,
such foreign judgment shall become and remain in the State
where such grant of execution has been obtained of the same
force and validity and shall be capable of the like execution and
enforcement as if it had been originally pronounced by the
Courts of the State where execution has been obtained :
Provided that if at any time such judgment, by reason of efflux
of time or of any judicial proceeding or of any other cause, shall
cease to be valid, enforceable, or executory in the State where it
was pronounced, it shall cease to be valid, enforceable, or
executory in all other States, and any grant of execution thereof
obtained in a foreign State shall be set aside or revoked on the
application of any party thereto by the Court from which such
grant of execution was obtained.
Note, — It is not intended by this provision to substitute the Statutes of
Limitation of the original Court for those of the forum^ but to require that
the judgment to be enforced should not have been extinguished by either law.
Art, VL — No Government party hereto shall be deemed to
have undertaken any responsibility or liability in respect of this
Convention until in each case the Courts and Tribunals of the
contracting Government have acquired and received by legislation
( 200 )
or otherwise under the constitution of the State the necessary
powers, authorities and directions for the carrying out hereof:
Provided that no State or Government shall be entitled to
demand for itself or its subjects the carrying out of this Conven-
tion in any other State, until its own Courts have acquired and
received by legislation or otherwise the necessary powers,
authorities and directions aforesaid :
And provided further, that each of the contractmg Govern-
ments parties hereto shall use all reasonable care and diligence to
clothe and invest its own Courts and Tribunals with the said
powers, authorities and directions, whether by legislation or in any
other manner, which by the constitution of such State may be
necessary, sufficient and expedient
NoU, — In England, certainly, and probably in many other States, the
Courts cannot exercise such jurisdiction as this under the authority of a treaty
alone. And not only for this reason, but also because rules of procedure are
absolutely necessary to the working of the Convention, legislation in each
State would be required. An examination of Mr. Piggott*s Mauritius Ordin-
ance will show that this legislation must not only go into some detail, but is
of a nature requiring the skill of a legal expert in each legislating State. To
present the draft of a suggested English statute for the consideration of the
International Law Association would be useless ; and the practical difficulty
is to distinguish between those provisions which should form part of the
International agreements, and those which are necessary in order that the
Courts of each State may carry such agreements out.
J. A. FOOTE,
REMARKS ON THE DRAFT FOREIGN JUDGMENTS
CONVENTION.
BY F. T. PiGGOTT.
I venture to offer the following remarks on these suggestions.
I do not pretend that they are exhaustive. I have myself drafted
a Convention on lines which vary somewhat from those on which
this draft is based, and I could only make a complete criticism of
the proposed draft by an exhaustive comparison of the two
documents. I think it better, therefore, to confine myself to
making a few remarks on points which occur to me in which I
think the draft could be improved. I refer to the Mauritian
ordinance for convenience as it is in the hands of members.
( 301 )
Art. //. — I think something should be said as to ** speedy
exeaOion^*' One of the stumbling-blocks in the way of a Con-
vention between £ngland and foreign countries is the English
action on a foreign judgment It is a sine guA mm that this be
abolished, and a motion for judgment introduced Unless the
English judicial authorities will accede to this, the idea of con-
ventions may be postponed indefinitely. It would be well, I
think, for the EngUsh lawyers at the Conference to pass a resolu-
tion dealing expressly with this point See sect 4, Mauritius Ordin.
Art. ///. — I like Art III. (i), if the exceptions introduced in
sect 3 of Mauritius Ordin. are embodied. But then it seems to
me that (2) and (3) are unnecessary. I believe the cardinal rule
must be that, both as to the rules of jurisdiction, and as to
the procedure for serving absent defendants, the widest latitude
possible should be given to each State. It does not seem to me
possible to expect that the rules of all States should be uniform
on these points ; it is better that no attempt should be made to
get existing systems of law or procedure modified. To this
general rule, however, there are exceptions to be made, ex-
cluding the French and Scotch rules of jurisdiction, and the
French rule of service on absent defendants. I am, therefore,
against any attempt to formulate Rules of Jurisdiction, and
suggest an article or a resolution on the lines of sect. 3 of the
Ordin. I have referred to.
[I have, however, made some suggestions on this subject in
another memorandum.]
As to (4), the terms " public law " and " order " are well under-
stood in foreign systems; but their meaning and application in
English law are doubtfuL
Generally, it is of the utmost importance that " double execu-
tion " should be prevented.
Art. IV. (a). — Fraud. To mention the subject is to raise the
whirlwind. It is almost impossible to deal with this question
except at great length. I must^ therefore, content myself with
giving my opinion concisely.
( 202 )
I see no reason for dealing with the defence of fraud differently
from any other defence. The cardinal principle is that the Court
granting execution on a foreign judgment is not a Court of Appeal
from the Court which pronounced it. Redress against a judgment
must be sought in the country where it was given.
It is impossible to imagine a system of law which does not
give redress for fraud even after judgment pronounced. Why
should the defendant not be compelled to avail himself of that
redress. I believe sect. 6 (2) proviso, of Mauritius Ordin. is the
best way of dealing with the question.
To allow the defence of fraud to be raised will nullify the
benefits of the Convention. The prima fades of the case is that
the judgment should have been satisfied ; the judgment debtor
who has not satisfied the judgment, and who has not availed
himself of the redress given by the country where the judgment
was pronounced, is not entitled to any sympathy ; much less is he
to be entitled to raise a defence making for delay. An unscrupu-
lous defendant will always raise the defence, will probably get a
commission to examine witnesses abroad, and so postpone the
grant of execution. Let me cite a case in my own experience.
An award of arbitrators at the Cape had been made a rule of
Court ; both parties had appeared at the arbitration. Execution
however could not issue in the Colony. Action was brought in
England, and I settled the statement of claim. The defence
raised fraud. I opposed an application for a commission to the
Cape unsuccessfully. The proceedings were hung up for four
years ; and when the case at last came on there was no defence,
judgment being consented to. But even this did not exhaust the
powers of delay. The defendant might have defended at the
trial, and with a judgment against him have gone to higher
Courts — even to the House of Lords.
I believe it to be absolutely essential to the success of the
project of settling the question by convention that this defence of
fraud should be swept away.
I agree entirely with Mr. Footers remark that it is very difficult
to determine where a convention should end and where legislation
( «03 )
begin* I believe, however, that a convention should go into a
little more detail than is done in the draft under consideration.
It is a very complicated undertaking, and almost every word
would lead to discussion. I venture to suggest that the time
available at the Conference might be most profitably employed by
considering and adopting a series of resolutions : perhaps some-
what as follows : —
I. — ^That great hardship results from the unsettled state
of the law both in the United Kingdom, the Colonies, and
foreign countries, with regard to the effect of British, Colonial,
and foreign judgments, and that much benefit would result to
commerce and to litigants generally if Imperial legislation were
passed on the subject for the Empire, and conventions entered
into with foreign States.
II. — ^That the fundamental principle on which such legislation
and conventions should be based is the reposing full £uth and
confidence in the honour, integrity and impartiality of Her
Majesty's Colonial judges, and in the judges of foreign States.
III. That it is essential that execution on colonial and
foreign judgments should be speedily obtained in the Queen's
Dominions, and to this end that the lengthy process of actions on
such judgments, which are now required by English and Colonial
laws, should be replaced by a motion for execution.
IV. That although it is impossible to deal in these resolutions
with all the details of the subject, yet that the following principles
should be adopted : —
L Due precautions must be taken to prevent double execution.
iL The rules of jurisdiction over absent defendants, and the
methods of service of process on such defendants, must
be left to the discretion of each Colony and State, but
that the following rules should not be recognised : —
(a) Those which base jurisdiction purely on the nationality
of the plaintiff.
(S) Those which base jurisdiction on the possession of
property by the defendant within the jurisdiction.
( ao4 )
{c) Those rules of service against absent defendants,
where personal service is impracticable, which do not
require all reasonable precautions to be taken to
bring the existence of the action to the knowledge
of the defendant
iii. The defence of fraud should not be allowed unless all the
means of redress provided by the country of origin
against judgments obtained by fraud have ceased to be
available.
F. T. PlOOOTT.
Projbt de Convention relative A L'ExficuTioN des
JUGEMENTS EtRANGERS.
Attendu qu'il est desirable que des dispositions soient prises
pour une meilleure execution r^ciproque des jugements des
tribunaux de chacun des Etats contractants par les tribunaux des
autres Etats contractants dans leurs territoires respectifs,
Les Gouvemements contractants ont d^cid^, et par la pr^sente
tombent d'accord, chacun en ce qui le conceme, sur ce qui
suit :
Art. x^. — C^tte convention traitera et agira en ce qui con-
ceme les jugements suivants seulement, ^ savoir: jugements
pour le paiement d'une somme d'argent constatde, soit par voie
de dette, dommages-int^6ts ou frais, dus par une personne k une
autre, et s'appliquera aux jugements de cette cat^gorie, prononc^
avant ou aprbs la date de cette convention.
^cte, — II est sugger^ qu'il n'y a aaciine chance pratique d*obtenir la l^sla-
tion OQ m£me I'accord, quel qu'il soit, qoant k pr^nt, si I'on ne bome pas
Tessai an simple cas d'on jngement in personam pour une somme d'argent
d^termin^.
Art. II. — II sera permis k toute personne qui a obtenu on
jugement contre une autre, pour le paiement d'une somme
d'argent, d'un tribunal, ddment .constitu^, de Tun des Gouveme-
ments, parties de la convention, de s'adresser aux tribunaux de
Tun des autres dits Gouvemements pour Tex^cution dudit
( 205 )
jugement, dans le juridiction territoriale du tribanal auquel die
se sera adress^, et Tex^cution dudit jugement sera accord^e en
consequence, sujette aux dispositions contenues ci-apr^s, et con-
formdment k la procdduxe du tribunal auquel on se sera adresad
Art. III. — Pour que le demandeur puisse obtenir cette
execution, 11 lui faudia constater k la satisfaction du tribunal it
qui il la demande :
i^ Que le jugement a ^t^ rendu par un tribuna competent
d'aprfes les regies de competence reconnues par le
tribunal auquel la demande en execution est adress^e ;
(l). A la Confifrence de Bmxelles, 1895, T Association donna le loin i on
Comite de codifier les r^les de juridiction. Tant que ces r^les ne seront
pas codifi^ le seal moyen parait 6tre celui qui est adopts id.
^ Que les parties ont 6t6 dtment assignees ;
3* Que, lorsque le jugement a 6t6 rendu par d^faut, la partie
contre laquelle il a 6t6 rendu a eu connaissance du
litige et la possibility de s'y ddfendre ;
4« Que le jugement ne contient rien de contraire h, la
morality, ni k Tordre ni au droit public de TEtat dans
lequel rexdcution est demand^e ;
5* Que le jugement est devenu [et reste, jusqu'au moment
de la demande en execution] ex^cutoire dans le pays
ob il a ete rendu ;
Les regies a it 5, sanf la partie de la demi^re plac^e entre crochets, ont
iU adopts par I'Asociation i la Conference de Milan.
6* Que le jugement n'a pas re9u satis&ction ;
7* Qu'il y a des raisons s^rieuses pour croire que le d^fendeur
possbde, dans la juridiction du tribunal auquel on s'est
adressd, des biens sufi&sants pour donner satisfaction au
jugement
(6) et (7). Ces r^les sont ^demment n^cessaires et ont iti adoptees avec
qaelqnes modifications par M. Piggott, dans la MaurUiut Ordinance,
8** Que la personne contre laquelle on demande Tex^cution
du jugement a ^t^ notiii^e de la demande de manibre k
( 206 )
pouvoir comparaitre k Taudition de cette demande, soit
en personne, soit dans la personne d'un avocat
(8). Ceci pent paraitre superflu, mais it est d^irable de mettre hors de
doute que ces demandes ne peutrent jamais dtre faites ex parte.
Art. IV. — Le tribunal competent accordera- execution de
tout jugement qui satisfait aux conditions ci-dessus indiqu^es,
k moins qu'il ne soit d^montr^ ou qu'il ne paraisse \ ce Tribunal :
I®. Qu'il existe un recours par voie d'appel ou autrement
contre le jugement, dans le pays oU il a ix€ rendu, et
que la personne contre laqueUe Tex^cution est demand^
a d^jk exerc^, ou a de bonne foi Tintention d'exercer,
son droit de recours contre le jugement
(I). Tir^ en substance de la Mauritius Ordinance de M. Piggott. Si,
d'apr^ la Ux loci, ce recours constitue par lui-m6me un arr^t d'ezecudon, ou
si cet arr6t d'execution a ^t^ accord^ par les tribunaux du pays oil le jugement
a ^t^ rendu, le cas tombera dans I'art. Ill (5) suprd,
3®. Que le jugement a it6 obtenu par fraude ou collusion,
et que la personne contre laquelle I'exdcution est
demandde n'a eu aucun moyen de faire casser le juge-
ment ou d'obtenir une autre reparation suffisante dans
le pays oh le jugement a ix6 rendu :
(2). Ced soul^ve la question difficile de r^ouvrir un jugement pretendn
obtenu par fraude, par exemple, par le moyen de faux t^moignages ; foir la
note lue k la Confi^rence de Buffalo, 1S99, sur le jugement anglais dans
Taffaire Vadala contre Lowes, 25 Q. B. D. 310 (Rapport, pp. 233, 234). Cc
jugement va beaucoup plus loin que notre suggestion.
Dans Tun ou Tautre cas mentionn^ dans cet article, le tribunal
auquel la demande d'ex^cution est faite pourra, k sa discretion,
refuser Tex^cution propos^e ou Taccorder sous condition, ou bien,
si elle a d^jk ^l^ accord^e, pourra la r^voquer ou la suspendre, et
dans chaque cas, dans les termes et sous les conditions qu*il
jugera convenables.
Art. V. — Quand rex^cution d'un jugement Stranger a ^te
demandee et accord^e, d'aprbs les dispositions de cette conven-
( 207 )
tioHf ce jugement deviendra et restera, dans TEtat oh cette
ex^iUion a ^t^ obtenue, de m^me force et validity, et sera
ex^cutoire comroe s'il avait ^t^ k Torigine rendu par les tribunaux
de I'Etat oh Tex^cution a ^t^ obtenue. Pourvu que, si plus tard
ce jugement, par raison d'^coulement de temps ou d'une decision
judiciaire ou de toute autre cause, cesse d'etre valide ou exdcu-
toire dans le ressort de TEtat oh il a 6ti prononc^, il cesse
^galement d'etre valide ou exdcutoire dans les ressorts de tous les
autres Etats contractants, et tout jugement rendu dans le ressort
dun de ces Etats sera annuls ou r^voqu^ sur la demande de toute
partie par le tribunal qui Ta rendu ex^cutoire.
JSTaU, — H n'est pas dans Pidee, par cette disposition, de sabsdtuer les
r^les de prescription da premier tribunal k celles du forum^ mais d'exiger
que le jugement k ez^cuter ne soit pas d^chu par ancune des deux lois.
Art. VL — Aucun des Gouvemements contractants ne sera
consid^rd avoir pris une responsabilit^ ou engagement par cette
convention, jusqu'k ce que les tribunaux aient ^t^ investis, par
legislation ou autrement, conform^ment k la constitution de
chaque Etat contractant, des pouvoirs, autoritds et directions
n^cessaires pour Tex^cution pratique de cette convention, pourvu
qu'aucun Etat ou Gouvernement n*ait le droit de demander, pour
lui-meme ou ses nationaux, Fex^cution de cette convention dans
le ressort d'un autre Etat, jusqu'k ce que ses propres tribunaux
aient €t€ investis des pouvoirs, autorit^s et directions susdits;
mais il est convenu que chacun des Gouvemements contractants
mettra tout le soin raisonnable pour investir ses propres tribu-
naux desdits pouvoirs, autorit^s et directions, soit par legislation,
ou de toute autre manibre qui, en vertu de la constitution
de cet Etat, peut 6tre ndcessaire, sufiisant ou desirable.
Note, — En Angleterre certainement, et probablement dans beaucoup d'autres
Etats, les tribunaux ne peuvent pas 6tre rendus competents uniqueroent sous
Tautorit^ d'une convention. Non seulement pour cette raison, mais aussi
parce que des r^les speciales de procedure sont absoiument n^essaires pour
I'execution pratique de la convention, la legislation, dans chaque Etat,
devrait dtre exigee. Un examen de la Mauritius Ordinance^ de M. Piggott,
montrera non seulement que ce reglement doit ^tre d^taille, mais que sa
redaction exige la connaissance d*un expert legal dans chaque Etat. Pre-
( 2o8 )
senter le projet d'un r^lement anglais pour #tre examin^ par I'Associatioii
de droit international serait inutile. II est difficile de distinguer entre la
dispositions qui doivent faire partie de Taccord international, et celles qui
sont n^cessaires pour I'ex^tion pratique de cet accord par lea tribunaux de
chaque Etat.
Rules for determining the competence of a foreign
COURT TO PRONOUNCE A JUDGMENT in personam FOR THE
PAYMENT OF AN ASCERTAINED SUM OF MONEY.
Proposed by J. Alderson Foote, Q.C
The Court by which the judgment has been pronounced shall be
deemed competent in each and every of the following cases : —
(i). If the person against whom the judgment was pronounced
was at the time when the action was commenced actually present
within the territorial jurisdiction of the Court, and was served
with process according to the practice of such Court ; or
(2). If the person against whom the judgment was pronounced
was at the time when the action was commenced a subject ^the
State of such Court, and was sued in respect of a contract made
or to be performed, or of a tort committed, within the territorial
jurisdiction of such Court, and was served with process or notice
of process in such action according to the practice of such
Court; or
(3). If the person against whom the judgment was pronounced
submitted to the jurisdiction by instituting or voluntarily appearing
in the action ; or
(4). If the person against whom the judgment was pronounced
had contracted to submit to the jurisdiction of the Court in respect
of the subject-matter of the action.
A^/^.— These rules, which are here tentatively suggested for the considera-
tion of the Committee, and rather as a basis for discussion than as a proposal,
arc subject to the following remarks : —
First, it appears to the writer that any attempt to codify rules for deter-
mining the competence of a Court should be confined to cases of personal
judgments for the payment of money, not only because it would be almost hope-
less to enter upon the larger subject, but also because no international agree-
ment for obtaining the execution of foreign judgments is at present at all
( 209 )
ikclj to be practicable, except with regard to judgments of this limited
class.
Secondly, the writer has endeavoured to express in this form the present
state of English law on the subject, not because the English law is necessarily
right, but because it forms a convenient starting-point for discussion, and
because it professes to be based on principles of international, not municipal
law.
Rule (i) expresses the law as laid down in the case of Sirdar Singh v.
Rajak of Ptrindkote, in the Privy Council (1894, Appeal Cases, pu 670), liy
the late Lord Selborne, citing in support Story's Conflict of Laws^ and ed.,
sections 546, 549, 554, 5s6, 586, and Kent's Comm., vol I, p. 284(ioth ed.).
The judgment was concurred in by Lords Watson, Hobhoose, Macnaghten,
Morris, and Shand, and Sir R. Couch.
Rule (2), which gives a jurisdiction in absenUm against a subject, when
the cause of action arose within the jurisdiction, is nowhere, I think, expressly
pnt in this form. It is, however, clear that the judgment last cited, and, I
think, all others on the point, though requiring presence within the territorial
limits in ordinary cases, carefully abstain from including subjects of the State
in this rule ; and, no doubt, they remain liable to the jurisdiction, although
out of the country (Story, Conflict of Laws, section 546). It appears dear,
however, that the right of a state to implead its absent subjects would not
ordinarily be exercised except in the cases provided for by the suggested rule —
i.e., cases of contracts made or to be performed, or torts committed, within
the jurisdiction. (It is so in the English practice under Ord. 1 1 of the Rules of
Court, which extends, however, to claiming jurisdiction against absent persons
"domiciled or ordinarily resident within the jurisdiction.")
Rules (3) and (4) are borrowed from the judgment of Lord Justice Fry in
1880, in the case of Rousillon v. Rousillon^ 14 Ch. Div., 371.
J. A. Foot*.
Note on Rule (i).
Objection has been taken to Rule (i), on the ground that it
purports to recognize the jurisdiction of every Court to pronounce
judgment against any defendant who was actually present within
the territorial jurisdiction of the Court when the action was
commenced, and was served with process according to the
practice of such Court.
It is suggested that for the words ^^ actually present^^ should be
substituted ''^resident!* I presume that ^^ resident and actually
present'^ will be necessary, if the change is made.
The following considerations, however, appear to me to deserve
attention.
It is plain that by " residence *' is meant something less than
p
( 2IO )
" domicil," something more than " actual presence." It is sub-
mitted that, hitherto, for the purposes of international law,
" domicil " has been the legal conception of " residence '*; and that
any attempt to distinguish the two, by introducing the conception
of a legal permanent home which shall not be domicil, must lead
to confusion. The difficulties which would arise may be tested
by actual examples. A foreigner sleeping one night at an hotel
would of course not be deemed to " reside " there. Imagine that
he stayed a week, or a month, or that he took furnished lodgings
in the town for a week or for a month. Would he then be
** resident," or not ? If not, how many days, weeks or months,
would be sufficient? Many Englishmen go to the south of
France for six months at a time, in the winter. Are they
" resident " ? and if yes, how is their case different in principle
from a visitor who spends a week at the seaside ? If no, would
they become residents by staying twelve months instead of six ?
and where is the line to be drawn ?
Secondly, if jurisdiction is to be recognized only over " resi-
dents," this is by implication to deny that the Courts of a country
have jurisdiction over persons actually present within their
territorial limits, who do not satisfy this requirement It is sub-
mitted that it will be very difficult to find either authority or
principle for so limiting the jurisdiction of the Courts of a
Sovereign State. If it is inconvenient in any case that such
jurisdiction should be asserted, either because the defendant is
only transiently within the territorial limits or for any other reason,
this is a matter which the Court appealed to should decide for
itself; and it may well be that as a rule of domestic law, some test
of temporary residence may be established and recognized. But
it is submitted that to deny the cotnpetmce of a Court to pronounce
personal judgment against all persons found within its sovereign
limits, is to open a very large and serious question.
I should add that in the judgment of Lord Selborne in the
case to which my printed note to the rule refers, the distinction
(if any) between " temporary residence " and " actual presence "
was not before the minds of the judges, the point being that the
( "I )
defendant had left the State in which he was sued before the suit
commenced. I did not intend to suggest that this particular
point had been decided, as a matter of English law, by this case.
The words used by Lord Selbome are : '' Territorial jurisdiction
attaches • . . upon aU persons either permanently or temporarily
resident within the territory " ; and in support of this he cites
(in/er alia) Story, Conflict of Laws y s. 554 : ''By the common law,
peisonal action bemg transitory, may be brought in any place
where the party defendant can be found." And if by " temporary
residence," is meant more than presence within the jurisdiction,
this is to introduce a fourth conception : the stages being (i) Pre-
sence, (2) Temporary residence, (3) Permanent residence,
(4) DomiciL This seems undesirable.
Should it appear, however, to the majority of the Committee,
that an agreement can be arrived at by substituting <' resident and
actually present" for " actually present " in the proposed Rule (i),
I should personally be willing to accept the alteration, in order to
arrive at some conclusion. As before stated, the proposed rules
were only submitted as a basis for discussion ; and I hope that
some other members of the Committee will attempt to improve
them by something more than negative criticism.
J. A. FOOTE,
NOTE ON THE PROPOSED RULES OF JURISDICTION,
By F. T. Piggott.
The following case will demonstrate to the Congress the
urgent necessity of pressing all governments to deal with the
question.
A German firm with an agent in Mauritius sued in the
Mauritius Courts a resident in the colony on a promissory note,
the first of a series given in payment of machinery. The defence
was that the machinery was defective.
The trial lasted fifty days. Judgment was given for the
defendant with costs.
p 2
< 212 )
This judgment was not satisfied, and the Power of Attorney
to the agent was withdrawn.
More than five years have elapsed, and repeated applications
to the German Courts to obtain execution of the judgment for
costs have failed : the Courts holding that the condition of
reciprocity required by the German Code was not satisfied by
English (or Mauritian; law.
My own view is that the question of jurisdiction ought to be
left entirely to the discretion of each legislature, and also the
question of what service of the initial process in an action is
necessary or sufficient; in both cases whether the defendant be
a subject or an alien, and whether he be absent or present within
:the jurisdiction. And that when we come to the question of
enforcing a foreign judgment the old defences of absence of juris-
diction and absence of notice ought to be done away with.
To each part of this broad rule however there are exceptions ;
jurisdiction based on the iiationality of the plaintiff (which is the
characteristic of the French systeo)), and jurisdiction based solely
on the existence of property of the defendant within the jurisdic-
tion (which is the characteristic of the Scotch system), are, I think,
not warranted, and judgments based on them should not be
entitled to execution in other countries. So too with regard to
service of process on a trustee, there are, I think, grave objec-
tions to the French system which allows service on the procureur,
but does not insist on his making any effort to bring the existence
of the action to the notice of the defendants.
[My friends the French lawyers may perhaps complain that I
:am attacking their system in all its parts. But I believe the
justice of the criticism is admitted to be sound by nearly all
French lawyers who have studied International law ; and if there
are still some who doubt, I would venture to remind them that
their codes are one hundred years old, and the questions now
under the consideration of the Conference are essentially ques-
tions of to-day.]
I do not know of any other systems either of jurisdiction or
procedure open to serious objection : and it seems to me better
( "3 )
therefore to deal with the subject negatively rather than positively.
And as the Mauritius Ordinance of 1899 which I drafted has
been printed, I beg to refer the members of the Committee to
sect 3 which embodies my views on the question.
The difficulty I feel about formulating any positive rules of
jurisdiction is that they may not be exhaustive. More especially
when we deal with contractual jurisdiction there may be slight
variations which the positive formula might exclude, and which
might yet be innocuous : in torts too the rules may vary, as they
have done in England at different times: and any attempt to
define what should constitute sufficient service of process must I
fear favour evasion of service ; for the fonn of service must vary
in every country, and I doubt if any definition could be exhaustive
of processes which are justifiable.
If, however, the Committee decide to proceed by the positive
method, I venture to offer the following remarks on Mr. Foote's
suggested rules.
(i). I entirely agree with Mr. Foote's note on the necessity of
maintaining actual presence. To whittle this away by intro-
ducing any residential qualification would be so contrary to the
fundamental ideas of sovereignty that I doubt if any practical
outcome could be expected from a recommendation so limited.
Persons within the territorial jurisdiction of a country are subject
to the authority of the law and of the Courts ; and I do not think
it would be possible to say that persons should not be subject to
the service of the Courts merely because they are present only for
a brief period.
[There is, if my memory serves me, an English case in which
service on a person on board a foreign merchant vessel which had
touched at Liverpool for a short time was held good — and I do
not see how it could be otherwise.]
There are cases of hardship of course. Take the following :
a contract entered into in France between a Spaniard and an
American. The American returning by way of Liverpool might
be served in harbour with an English writ, and the dispute thus
brought within the jurisdiction of the English Courts. Any
( 214 )
number of extreme cases can be imagined ; but the fault, if fault
it is (which I am not at all prepared to admit), lies with the broad
rule of competence — almost universal I believe — that except in
60 far as tide to land is concerned a Court can try an acUon
which has arisen an3rwhere. I do not think it would be wise to
limit this rule in any way.
I venture to suggest, however, in rule (i) that the words
" served with process " are a little too narrow. They might be
said to include '' substituted service," but would exclude service
by advertisement, which sometimes must be resorted to. In view
of a rule which I am going to propose dealing specially with
service, I propose that rule (i) should stop at the words "jurisdic-
tion of the Court"
But although, as I have said, I think that the first rule of
jurisdiction must be based for constitutional reasons on actual
presence, I think that personal jurisdiction should not be limited
by that rule, and that therefore a second rule should be adopted
basing jurisdiction on domicil or usual residence. Personally I
prefer the term " usual residence," leaving the courts to determine
each case on its merits. The definition of bankruptcy jurisdic-
tion given in the Act of 1883 is if the debtor is " domiciled or
within a year before the date of the petition has ordinarily resided
or had a dwelling-house or place of business in England," and
this might be adopted; but I think it is better to leave the
construction of the term to the courts of each country. There
are many objections to taking " domicil " as the test First the
law is exceedingly complicated and intricate, and in civil and
commercial matters a simple rule should be adopted; on the
other hand many arguments can be advanced in favour of making
jurisdiction in such matters depend on a residence in the country
in which it is more than likely the obligation in issue in the suit
has arisen. Secondly, the word "domicil" is likely to lead to
much difficulty with continental lawyers. " Domicil," as English
lawyers understand it, is recognised by the French law ; it is called,
I believe, ** domicile de fait " ; but the domicile of the codes merely
signifies (unless I am much mistaken) the residential test for the
( "5 )
jurisdiction of local courts — analogous to our own rules of County
Court jurisdiction. Discussion on the word '^ domicil " is always
difficult unless this be borne in mind. I always use the two
words " domicil " and " domicile " to preserve the distinction.
Rule (2). I suggest that this rule should not be limited to
subjects.
The essence of the contractual jurisdiction against absentees
lies in the fact that the contractual act (of commission or omission)
on which the jurisdiction rests has been done within the territorial
jurisdiction. This seems to me to be irrespective of person.
The same may be said of tortious jurisdiction ; although the rule
has been given up in England, it is sound, I think, to say that the
courts of the country where a tort has been committed should
have jurisdiction in the action arising out of it I suggest the
omission, as in Rule (i), of the reference to service of process.
I have nothing to suggest with regard to Rules (3) and (4).
With regard to service of process I now venture to suggest a
further rule, which I think may be more conveniently stated in the
form of a " Note to the above Rules," in some such words as the
following : —
In all cases where jurisdiction is exercised under the above
rules the court will be seised of the action according to the
practice of such court ; and in connection with the execution of
foreign judgments, where the action has been brought against an
absent defendant, the form of the procedure shall be held to be
unassailable if the law requires, where personal service is not
practicable, all reasonable efforts to be made to bring the fact of
the action having been begun to the knowledge of the defendant
F. T. PicxjoiT.
( 2»6 )
PROJET DE RteLEMENT POUR DETERMINER LA COMPfrrENCE
D*UN TRIBUNAL feTRANGER AYANT PRONONCfi UN JUGEMENT
in personam pour le paiement d'une somme d* argent
CONSTATfiE.
Le tribunal Stranger ayant prononcd un tel jugement doit fitre
reconnu competent dans les cas suivants :
1° Si le demandeur ou le ddfendeur centre lequel le jugement
a €i€ prononc^ ^tait, au moment ou Taction ^tait coramencdey
present sur le territoire de juridiction du tribunal, et a re^u
signification du procfes selon la procedure de ce tribunal ;
2° Si le demandeur ou ddfendeur contre lequel le jugement a
6i6 prononc^ dtait, au moment oil Taction fut commencde, national
de TEtat de ce tribunal et fut poursuivi conformement k un
engagement contract^ ou k remplir, ou pour un ddlit commis dans
la juridiction territoriale de ce tribunal, et a re9u signification de
procfes dans cette action ;
30 Si le demandeur ou d^fendeur contre lequel le jugement fut
prononc^ s'est soumis k la juridiction en intentant ou en parais-
sant volontairement dans Taction ;
40 Si le demandeur ou d^fendeur contre lequel le jugement fut
prononcd a contract^ de se soumettre k la juridiction de ce
tribunal pour ce qui est de la mati^re cause de Taction.
NoU, — Ces r^les, qai sont soumises k Tappreciation du Comite, plut6t
comme base d'une discussion que comme proposition, sont sujettcs aux
remarques suivantes : —
D*abord, I'auteur pcnse que tout essai pour codifier des regies, en vue de
determiner la competence d*nn tribunal, devrait se bomer aux cas des
jugcments in personam pour le paiement d'une somme d'argent, non seule-
ment parce qu'il serait presque inutile d'aborder un terrain plus ^tendu, mais
aussi parce qu'aucun accord international pour obtenir I'ex^ution des juge-
ments etrangers n'est actuellement realisable, sauf en ce qui conceme les
jugements de cette categorie limitee.
Secondement, Tauteur a essay^ d*exprimer sous cette forme Tetat actuel
de la loi anglaise sur le sujet, non parce que la loi anglaise est necessairement
juste, mais parce qu'elle donne un point de depart convenable pour la discus-
sion et parce qu'elle professe d'etre bas^e sur des principes de droit inter-
national et non de droit municipal.
La regie (l) expose la loi formulee dans Taffaire Sirdar Singh c. Rajah
( "7 )
ii FerindkoU^ devant \t Conseil priv^ (1894, Appeal Cases, p. 670), par
fen Lord Selbome, ciunt i I'appai le Confiii des Lais, de Story, 2*** ed.,
sections 546, 549, S54> 55^1 S^i ct Commmtaires, de Kent, vol. I, p. 284,
lo* ed. Le jugement fut appuy^ par Lords Watson, llobhouse, Macnaghten,
Morris et Shand et Sir R. Couch.
R^le (2) qui donne une juridiction in absenUm contre un national, quand
la cause de Taction sVl^ve dans la juridiction, n'est nuUe part, je pense,
express^ment mise sous cette forme.
II est cependant clair que le jugement dt^ en dernier, et je le crois, tous
les autres sur cette question, bien qu*exigeant la presence dans les limites
territoriales pour les cas ordinaires, s'abstient avec soin de comprendre les
nationaux dans cette r^gle ; et il n'est pas douteux qn'ils restent sonmis k la
juridiction, bien qu'^tant en dehors du pays {^ConftU da Jm^ de Story,
section 546).
II pandt clair cependant que la competence des tribunnux \ l*^rd de
ses nationaux absents ne serait pas ordinairement exerc^, except^ dans les
cas prfms par la r^gle sugger^e, c'est-k-dire dans les cas de coutrats faits ou
\ remplir ou de d^lits commis dans le ressort de ces tribunaux. II en est ainsi
dans la pratique anglaise, d'apr^ Ordre 1 1 des R^les de la Haute-Cour, qui
s'etend cependant jusqu'^ r^lamer la juridiction contre les personnes absentes,
domiciliees ou r^idant habituellement dans le ressort de la Cour.
Les regies (3) et (4) sont empruntees ^ im jugement de Lord Justice Fry
en 1880, dans le cas de RousHUon contre RoussiUon^ 14 ch. div. 371.
J. A. FOOTK.
Mr. G. G. Phillimore : I venture now to ask the Conference
to express its views on Mr. Foote's proposals and Mr. Piggott's
notes. These two gentlemen have been kind enough to spend
considerable time and trouble in preparing these for us, and it is
most unfortunate that they are not able to be here to-day. We
were in the same unfortunate position last year in regard to the
matter, when we could not discuss it for want of there being
anybody present to discuss it. I beg to move that in their
present or amended form the proposals should be accepted by
the Conference.
Mr. K P. Carver : The proposed rules by themselves would
appear to give a judgment obtained in a foreign country a better
position in our own country than a judgment obtained in one of
our States in the same action. In other words, the United States
being made up of forty-five sovereign States, has placed in its
Constitution the provision.that a judgment of each and every State
( "8 )
shall have full force and effect in every other State ; but all of the
Courts in the United States and the United States Federal
Courts themselves have determined that in order to give a
judgment of any other State full force and effect in the State in
which it is sought to be enforced a suit must be brought, and all
questions with regard to proof of service must be brought satis-
factorily home to the parties. Now that provision of the
Constitution having received a construction of that nature, it
means, if we should adopt these proposed rules, that the person who
obtains a judgment in any one of the foreign countries of Europe
could come into the Courts of any State of ours and stand on a
superior footing there to a person who tries to enforce an American
judgment there.
As another objection to these proposals I wish to say that we,
in the United States, have adopted, after a great and hard fight,
the reciprocal idea, which became very prevalent in the United
States ; and now a man who has an English, Italian, or Canadian
judgment has a right to come into the United States and have
that judgment enforced just as if it was a judgment of one of the
Courts of the United States ; but if a man has a German, French,
or Russian judgment, he stands on no particular right, because
they do not give to our Courts the same right That is an
objection which would be obviated if all the Continental countries
agreed to these provisions. I think we should consider the fact
that these rules allow execution to be levied on filing the
judgment They cannot do that in our country without a suit,
and I think that is also the case in England.
Mr. Sinclair Cox : I have not had the opportunity of
discussing this paper with Mr. Foote, but it strikes me that the
scheme as presented is one which is not subject to the objection
that Mr. Carver, of Boston, makes, because, as I understand it,
his objection is that it would substitute something for the present
existing system of reciprocity. The proposal is simply that this
should be a draft convention which, of course, might be entered
into or not by any States which choose to accept it
( 219 )
Mr. £. P. Carver: I appreciated that I said in my last
remarks that this would obviate the question of reciprocity.
Mr. Sinclair Cox: It really would be another form of
reciprocity in a more extended and universal sense.
Mr. E. P. Carver : The only question I raise is bringing a
suit on a judgment Here you apply for execution at once.
Prince Cassano : I want to call the attention of the Conference
to two points arising out of these Reports. I commence by
taking the second Report made by Mr. Piggott It seems to me
a purely English proposal, because it runs absolutely and entirely
on the lines of the English law, so I do not know why and to
what extent an international Conference has to do with it
Now, coming to the first part, I do not think at the present
stage of the discussion we could adopt this draft Convention.
In England I know it is very difficult to get judgments or to take
actions upon judgments given by foreign Courts. In other
countries, and I may say in my country, Italy, it is very easy, and
it is so easy that sometimes you can get a judgment in our
Courts which you cannot get in France upon a judgment or
quasi-judgment given in France, as the French members of the
Association can attest My French colleagues can tell you that
there is in France a jurisdiction called juridUtion gracUuse^ which
is not absolutely judgment — (and I have taken one in Italy) —
but an order of the Court without any enforcement in France,
and if taken into Italy the result is that the parties interested in
it execute it in Italy, which they could not have done in France.
So that I think in the present state of things is very difficult
to endorse these rules, and I think it would be advisable to pass
the same Resolution with regard to them as has previously been
taken about the maritime insurance rules, and have such a
Resolution sent to all the members interested and to other
persons, and ask for objections. I know you have some objections
coming from Italy from two members, but I do not think they
go just to the point These sorts of questions are very difficult,
( 220 )
and I daresay very dangerous, because there are some places
where foreign judgments are accepted with great facility, perhaps
because of the ignorance of the Court dealing with the law of the
country.
M. Octave Marais, Vice-President for France, then addressed
the Conference in terms of which the foUowing is a summary.
Dans le projet de Convention D y a deux ou trois points que je
ne peux pas accepter. Quant k Tarticle 3, clause (6), il serait
impossible de foumir cette preuve selon les legislations con-
tinentales. Quant k la clause (7) quel int^rfit la justice pcut-
elle avoir pour s'enqu^rir de TefTet que produira Tex^cution?
Quant II Tarticle 4 (2), cette proposition constitue la destruction
fondamentale du principe ^tabli par le projet, c'est k dire
Fhonndtet^ et la probit^ du juge. (The President explained
that fraud on the part of the judge was not referred to). Ou c'est
une firaude possible k exposer et dans ce cas d'aprfes toutes les
legislations il est possible d'en obtenir la retractation. Selon la
legislation fran9aise dans le cas de dissimulation d'une pi^ce le
juge examine et r^tracte son jugement Si la partie a laiss^
passer les d^lais c'est sa faute. II y a des appreciations
difrerentes de fraude ou collusion. Cette question devrait 6tre
agitee devant le juge du pays qui a rendu le jugement
Mr. Benedict (United States) : I was unfortunately compelled
to be absent during the early part of this discussion, and it may
be that the suggestion which I have to make has been already
brought forward, but there is a point which seems to me to lie
behind this proposed Convention. As the law is now, if a person
is sued in another country than his own and where he is not
present — if a Frenchman is sued in the United States or a citizen
of England is sued in France — he has his choice whether he will
appear before that Court or not If he appears before the Court
and contests the case there would seem to be no reason why the
judgment which should be rendered in that case should not have
equal validity in the country where it is tried or in the country
( 221 ;
of his own residence ; but is it intended by these provisions to
compel every foreigner to appear in any Court in any country
before which he is sued ? I think not. I should be myself very
much opposed to any proposition which should lead to such a
result as that if a citizen of France were sued in the United States
or in any other part of the world he must appear before that
tribunal
A Member : He has the option when personal service of
process is made.
Mr. Benedict : If a citizen of the United States has know-
ledge that a suit has been commenced against him in France, he
has the choice whether he will go to France and defend it or
whether he will stay away.
Mr. E. P. Carver : Assuming he had actual service upon him
of the process while in London, knowing of the suit, and he did
not choose to go and defend ?
Mr. Benedict : That would be the case I have suggested. I
think he should be compelled to go, if he is within the jurisdic-
tion of the Court But no such provision is put into this third
article : " In order to entitle such applicant to obtain the execu-
tion applied for, it shall be necessary for him to show, to the
satisfaction of the Court applied to, (i) That the judgment was
pronounced by a tribunal having jurisdiction to pronounce it
according to the principles of law recognised in the Court applied
to ; {2) That the parties were duly cited." What do you mean
by ** didy cited ?" I think anybody would say that means cited
according to the law of the country of the tribunal.
A Member : That is where the process was issued.
Mr. Alexander : The first point is the question of juris-
diction.
Mr. Benedict : " According to the principles of law recognised
in the Court applied to." That comes back to the same point
( 322 )
For instance, in the United States we have very similar questions
come up. We have cases where citizens of New York are sued
in another State and they have been summoned to appear
according to the laws of that State, and yet they never have
appeared actually. The laws of another State will provide, for
instance, that the Court will have jurisdiction to render judgment
if a summons has been served by publication or by service outside
the jurisdiction.
Mr. Alexander : The " Court applied to " throughout these
rules means the Court applied to for the enforcement of the
original judgment
Mr. Benedict : Yes, I understand that, but the party who
applies for enforcement must show what has been done in the
original Court. And this is one thing he must show : He must
show that the parties were duly cited, that is, according to the
law of the tribunal. Now if the law of that country authorised
the Court to give judgment on a service of the process by pub-
lication only, it would be within this case, and the party would not
be able to set up any defence
Mr. E. P. Carver : Or if he had notice.
Mr. Benedici* : Or if he had simple notice or knowledge of it,
as he nearly always has, the result would be that if a person had
knowledge that a suit was taken against him in another country
he either must allow judgment to go against him by default,
which would be just as valid in his own country as if he were
served in the country where the tribunal was, or else he must
appear in the Court where the suit is commenced. I think that
would be carrying the matter too far. I think there must be some
other provision besides the mere provision that the parties were
duly cited according to the principles of the law of the tribunal.
The President : There is one provision in this Convention
that strikes me as highly objectionable, to which allusion has not
( ^^3 )
been made. It is the latter part of the first section, which makes
it retrospective : '* shall apply to such judgments whether pro-
nounced before or after the date of this Convention." If this
Convention should be adopted it would cover judgments pre-
viously rendered Such a retrospective clause should certainly
never be passed without strong grounds.
Mr. K P. Carver : It could not be so in the United States.
The President: I do not think sufficiently strong grounds
exist to justify this provision. It is obvious that a man might
very well be content as things stand now, having been served with
process from a foreign Court which he knows would not support
a proceeding in his own domestic jurisdiction, to neglect the suit,
pay no attention to it, and let judgment go by default ; and, if
subsequently a Convention be framed by his Government giving
that proceeding validity against him, it would be a very serious
thing. I certainly think that retrospective provision should be
struck out, ''and shall apply to such judgments whether pro-
nounced before or after the date of this Convention." I therefore
move that that clause be struck out of the Convention.
In reference to the suggestion made by Mr. Carver, that in the
United States these provisions would be inapplicable, owing to
our peculiar constitutional provisions affecting the relations of
the States to the United States, I venture to differ from him, and
to suggest that if the Uuited States should become a party to this
Convention, no doubt Congress would follow that step by adopting
a Statute (as they could) which would make the judgments of our
several States equally capable of being made executory in the
other States. The Constitution declares that the Congress may
give such faith and credit as it pleases to the judgments and pro-
ceedings of the States, and, therefore, can make them, in my
judgment, executory.
Let me also suggest that the phrase here, " duly cited," is hardly
fairly interpreted by my friend Mr. Benedict The 3rd Article
says : " In order to entitle such applicant to obtain the execution
( «24 )
applied for, it shall be necessary for him to show to the satis-
faction of the Court applied to that the parties were duly cited."
I do not think the Court applied to would be satisfied the parties
were duly cited, if it was simply posted on a court-house door
and never came to the knowledge of the defendant, even though
it might by legal procedure be deemed sufficient to justify judg-
ment by default. I think the ** duly *' there means ** duly in
the judgment of the Court to which application is made for
execution of the judgment."
As to the other question, as to whether a man in one State, on
whom service of process in a foreign State is made, can neglect
the suit and pay no attention to it, that seems to me, as far as the
United States is concerned, to be pretty abundantly settled in
£aivour of the judgment creditor. Take any foreign State having
institutions at all analogous to those of Anglo-.\merican law — a
settled civilised jurisdiction. If a man is sued by personal service
of process upon him while in the State, though temporarily
there, the judgment, I think, is good against him in the United
States, either under the principle of reciprocity or under the
principle of the general obligations of foreign judgments, or under
the general principle that, in the interests of society, it is desirable
that litigation should come to an end. There are several cases in
the American Reports on that point.
Mr. Cephas Brainerd (New York) : I do not think I under-
stand this paper at all, and the discussion, thus far, has not helped
me materially in understanding the situation in which an ordinary
everyday lawyer in our country would be if these proposals
became law.
In the first place I would refer to Article 3 (i) of the proposed
Convention, where it says that it is necessary in making the
application to show to the Court to which you apply that the
judgment was pronounced by a tribunal having jurisdiction to
pronounce it according to the principles of law recognised by the
Court to which application is made. Well, under a special
demurrer, I apprehend you would say that the enquiry before the
( "5 )
Court to which the application was made for the execution would
be strictly an enquiry as to matters of law ; but I am inclined to
think under the terms of that provision the whole merits of the
action would be open to enquiry.
The Chairman : And the demerits as well.
Mr. Brainerd : Either the one or the other, as it pleases you ;
but the whole case would be open upon that application.
Now, coming to sub-section (2) of the same Article, ^the
parties duly cited,'' it seems to me that in a paper of this sort we
should have something more definite and precise than that We
know in our own country of a great many cases where persons are
duly cited, and yet the Courts have held that the judgment was
not conclusive upon the parties who were so duly cited when an
attempt was made to enforce it in another jurisdiction, and I
apprehend that that " duly cited '* refers wholly and entirely to
the method of service of process in the jurisdiction out of which
that process issued.
Then I do not like the third sub-section of the same Article,
" That when the judgment was pronounced by deCsiult"--that is
by ddkuli under the service under a due citation, and nothing
else — **the party against whom it was pronounced had been
made aware of the action and had the opportunity of defending
himselfl" I think that no judgment should be held to be
conclusive upon a party unless he was formally served with
process bringing him into Court, and then, if he saw fit to neglect
that service, that perhaps would be very well
I have one other thing to say. At the end of the Convention,
in the observations of Mr. Piggott, he says (Resolution IV., iii) s
** The defence of fraud should not be allowed unless all the means
of redress provided by the country of origin against judgments
obtained by fraud have ceased to be available." Where I serve
a process upon a person passing through the State of New York
— a Frenchman, if you please, which is the most helpless case —
and I obtain final judgment by fraudulent condnct, he ought not
Q
( 226 )
to be called upon to come from France to the State of New York
to litigate the question of fraud, but he ought to have the option
and right to wait until I attempt to enforce my fraudulent
judgment against him in the country of his residence, namely, in
France, and there he ought to have the opportunity to test the
question whether he had been honestly or fraudulently treated in
the Courts of my State.
Now I have done, except to say this, that it does seem to me
that an important matter of this sort — and I agree it is of great
importance to have the law in regard to foreign judgments setded
— this Association ought not to be called upon to act on a paper,
or a set of papers, I agree ably prepared by a competent man,
but in a shape in which it is pretty difficult for us to determine
what we are actually doing. I notice, for instance, in the Rules,
all printed in proper form followed by proper annotations, on
page 4, it says : *' It is suggested that for the words * actually
present,' should be substituted 'resident'" I presume that
*' resident and actually present " will be necessary if the change
is made.
The Chairman : Gentlemen, the hour at which we usually
adjourn is past, and therefore, I think it desirable that I should,
if you will allow me, say a few words to sum up what has been
said on this important subject It appears to me that the matter
is by no means ripe for any decision at present I listened with
the greatest interest to what M. Marais said to us, and what
Mr. Brainerd said to us, and for my own part I must say this,
that I think the Convention submitted to this Association by
Mr. Foote (a friend of my own and a man of very great ability)
is open to objections, and serious objections, and it would be
inadvisable that we should send it out to the world with our
sanction. I take up Article IIL, which Mr. Brainerd has just
been dealing with, and with which M. Marais also dealt, and on
reading it it appears to me that there are serious objections to
nearly every one of the sul>sections of that Article. The first
appears to me to raise difficulties which are almost insur-
( "7 )
mountable. It provides that the penon who applies for the
execution shall show to the satisfaction of the Court to which he
applies that the judgment was pronounced by a tribunal having
jurisdiction to pronounce it. It means this, that if a judgment
were obtained in a County Court in England, and a person went
to one of the furthermost States in the United States to get
execution upon it, he must satisfy the Court of that State in the
United States that the little County Court in England had
jurisdiction to pronounce that judgment. Why, that is very often
a very difficult question in the English Courts, to determine
whether the County Court has jurisdiction or not ; how then is
the American Court to determine such a question? I would
suggest — but I am not going to do it now, because we have no
time remaining — that the production of the judgment with the
seal of the Court upon it should be primd fade evidence of the
validity of the jurisdiction^ and that it should be the duty of
the person who attacks it to satisfy the Court that the jurisdiction
of the Court is not what it purports on the face of it to be,
namely, a good and valid jurisdiction. The Article goes on :
"That the parties were duly cited." That means, I think, in
accordance with what has already been said by one of the
speakers, ^* duly cited in accordance with the procedure of the
of the Court that tried the case." That, again, is an impossible
thing to satisfy a foreign tribunal about, because they know
nothing at all about the procedure. Then comes the next clause
which has been commented upon by Mr. Brainerd, and then
there is this 4th provision : '' That the judgment contains nothing
contrary to the morality, the order, or the public law of the State
in which execution is applied for.'' What the morality of the
State is I am at a loss to understand. It may be good or bad
morals; but what we or any State or Court have to do with
morals I do not know. We have to do with law ; but I draw a
distinction between law and morals, although perhaps there ought
to be no distinction. In fact, there are so many objections that
have been shadowed forth by the different gentlemen here present
that what I would suggest is that the discussion of this important
Q 2
( "8 )
subject should stand adjourned to our next Conierence, if any
gentleman will adopt that view, and move it.
Prince Cassano: I have great pleasure in seconding such a
resolution,
Mr. Anoier: I think we ought also to pay a tribute to
Mr. Foote for drawing the Convention.
Mr. Sinclair Cox: Mr, President and Gentlemen, I beg to
tnove : — " That the Conference cordially thanks Mr. Foote and
Mr, Piggott for their valuable contributions on the subject,
and defers its further consideration to the next Conference."
Mr. Brainerd : May I second that resolution ? While I never
met either of these gentlemen who have contributed the papers
on the subject, I understand perfectly well their repute and their
knowledge, and I would pay my homage to it.
The resolution was put to the meeting and carried.
Mr. Benedict : Will you allow me to say that it seems to me,
in view of the fact that we have postponed till the next Con-
ference the question of marine insurance and this important
question of enforcing foreign judgments, the Council ought to
be very slow in adding any other subjects for consideration,
because all the time the next Conference can give can very well
be devoted to these two subjects.
Mr. Alexander : I would suggest that the Committee should
be enlarged, and some of the gentlemen who have taken part in
the discussion to-day should serve on it, if they will.
Mr. G. G. Phillimore : The present Committee on Foreign
Judgments was appointed so long ago as 1895, and we welcomed
the help which such a well-known international lawyer as Mn
Foote could give us. At our request he contributed a paper to
the Buf^lo Conference last year, and again this year he drafted
tbt scheme which has now been discussed. That scheme was
circulated among all the members of the Committee, but it
( ««9 )
received at their hands only slight negative criticism. It is
always a difficulty for us to get persons who have not attended
conferences to give expression of their opinions in reference to
such circulated statements ; and it is very difficult to arrange for
the meeting of such a Committee to adopt joint resolutions, as
the members are resident in different countries.
The Chairman : The Committee make no joint resolution or
report
The President: I beg to move:— "That the Committee on
Foreign Judgments, appointed at Brussels in 1895, shall be
reconstituted by the Executive Council, with instructions to
report to the next Conference."
Sir Walter Phillimgre seconded the motion, and it was put
to the meeting and carried.
The Chairman: We can easily have one Committee in
London, but it would be desirable to have one in France and
one in America.
Mr. T. G. Carver: I suggest that there should be a Com-
mittee of three people in each country.
The Chairman : I should think three would be quite enough.
Mr. Angier: I suggest for the American Committee Mr.
Baldwin, Mr. Benedict, and Mr. Brainerd
The Chairman : That can be settled afterwards.
The Conference adjourned for the day at 4.30 p.m.
The members of the Conference were entertained in the
evening by the President and members of the Rouen Chamber of
Comiherce at ^ banquet in the Palais des Consuls. The speeches
delivered at this banquet will be found reported in Appendix B.
( ajo )
THIRD DAY.
The Conference reassembled at lo a.m. and the President took
the Chair.
The Minutes of the previous day's proceedings were read by
Mr. Alexander, and confirmed.
Immunity of Private Property at Sea from Capture
DURING War.
The President : I now call upon Mr. A. Wood Renton, of
London, to read the Report presented on behalf of the European
tnerabers of the Committee on "Immunity of Private Property
at Sea from Capture during War"; and Mr. C. C. Hyde
(Chicago; to read the Report presented by the American
members of the Committee on the same subject
Mr. C. C. Hyde (Chicago) and Mr. A. Wood Renton, LL.B.
(London), then read the following Reports and presented them,
with the accompanying papers, to the Conference : —
I.
Report by American CommitUe.
The American members of the committee to whom was referred
the question of ** Freedom of Private Property on the Sea from
Capture During War," report that they have conferred and con-
sidered the subject and see no reason for not adhering to the
American position which has been steadfastly and consistently
maintained by eminent statesmen for a century and a quarter in
regard to this important subject of International Law.
( '$r )
As was stated to the Association at the Buffido Conference in
August, 1899, the American position on this subject has been
frequently announced, and amongst the various expressions from
1785 to 1898 the following were quoted : —
"It b high time for the sake of humanity that a stop were put to this
enormity. The United States are now offering in all their treaties an article
engaging * * * (jtuA unarmed merchant ▼easels shall punue their voyage
unmolested. This will be a happy improvement in the law of nations."
Benjamin Fkanklxn, 1785.
**Bj the adoption of this rule, neutral nations wonld be the principal
losers, and, sensible as we are of this, we are still anxious from higher motives
than mere commercial gain that the principle should be universally adopted.
We are willing that the world, in common with ourselves, should gain in peace,
whatever we may lose in profit."
John Quincy Adams, 1823.
'* Private property of an enemy is protected when on land from seizure and
confiscation. Those who do not bear arms there are not disturbed in their
vocations. Why should not the same humane exemptions be extended to the
sea? This has been an object which the United States have had much in
heart since they assumed their place among the nations."
HsNEY Clay, 1826.
" Should the leading powers of Europe concur in proposing as a rule of
international law, to exempt private property upon the ocean from seixure by
public armed cruisers as well as by privateers, the United States will readily
meet them upon that broad ground."
Franklin Pieecs, 1854.
'*May the Government and the People of the United States soon be
gratified by seeing it [immunity of private property from capture] universally
recognized as another restraining and harmonizing influence imposed by
modem civilization upon tne art of war."
Hamilton Fish, 1870.
"The United States Government has for many years advocated this
hmnane and beneficent principle, and is now in position to recommend it to
other powers without the imputation of selfish motives."
William McKinlxy, 1898.
At the Hague Conference in 18991 ^^^ delegation representing
the United States made an effort to secure affirmative action in
regard to freedom of private maritime property from capture
during war; the Conference however deemed it beyond the scope
of its jurisdiction, but a resolution was adopted declaring that it
( 233 )
"was advisable to consider the subject in a special conference^
The American members of the committee are well aware that
rules of maritime law which have been recognized as controlling
the relations, duties and liabilities of neutrals and belligerents for
centuries, can only be altered by treaty stipulations adopted with
practical unanimity by all the maritime powers, and that it will be
impossible to obtain any satisfactory results in this respect with-
out a conference in which they would all be represented ; your
committee also considers that in modifying the existing rules on
warfare and the right to capture maritime property of enemies, it
will be necessary to preserve existing belligerent rights, such as
the Right of Search, Maritime Blockade and Capture of Contra-
band ; they believe, however, that a congress of all the maritime
powers called especially to consider this important subject, would
be able to formulate rules and regulations as to the status of
maritime property and the right to capture the same, which would
relieve peaceful and non-ofifending commerce from the burdens
which now rest upon it, and it would in nowise diminish the
effective power of belligerents. The American members of this
committee therefore present to the association the following
resolution, and recommend its adoption ;
Resolved^ That there should be a modification of the present
rules of naval warfare so far as the right to capture peaceful
and non-offending maritime property is concerned, and
Further Resolved^ That such result can best be obtained by a
conference or congress composed of duly accredited repre-
sentatives from all the maritime powers of the world who
should be properly empowered to consider this subject in all
of its aspects.
Further Resolved^ That the International Law Association re-
commend that such conference or congress be called at the
earliest possible date, and that the Secretary of the Associa-
tion be instructed to communicate with the proper officers of
the various maritime governments of the world, transmitting
to them a properly certified copy of this resolution.
( 233 )
Fwrthir Resolved^ That the members of this Association be
requested to urge upon their various governments the ne-
cessity and propriety of such conference, and that they take
all proper means of procuring the early convocation of the
same.
Dated, New York, July i8th, 1900.
Respectfully submitted,
Charles H. Butler.
Harrington Putnam.
Julian T. Davis.
11.
Report on behalf of European Members.
The divergence of view between American and European
lawyers on the subject of " the Immunity of Private Property at
Sea during War" is so acute that on being asked to undertake to
act as convener of a committee to deal with this question, no
attempt to secure a unanimous report in regard to it appeared to
me, after consultation with members whom I invited to join the
committee, to offer at the present time any prospect of success.
It seemed a more hopeful line of inquiry to endeavour to collect
a variety of expressions of legal and mercantile opinion as to
(i) the main controversy of" immunity'' or "no immunity," and
(2)— a point raised by Mr. Barclay in his paper at the Bufialo
Conference last year — ^whether a scheme could be devised of
" indemnifying for capture at sea on a reduced valuation, combined
with a license to put to sea."
Of these questions the latter is obviously one rather of a
municipal than of an international character. Only one of the
gentlemen who have contributed papers — Mr. Stanley Metcalfe —
deals with it Possibly his observations on the subject may elicit
some discussion of it at the Conference. As regards "the main
controversy of immunity or no immunity," it may be noted that
( 234 )
on several points a fair measure of agreement exists among the
representatives of different schools of opinion. It is generally
admitted that the exemption of private property at sea from
capture during war should not cover contraband, or extend to vessels
and their cargoes which may attempt to enter a port blockaded
by the naval forces of either party. Moreover, even among those
who criticise and disapprove on other points of the Declaration of
Paris, there is a widespread feeling that it is hopeless now to try
to go back from the propositions which it affirmed
But after such common ground has been traversed, agreement
ceases. First we have the traditional American view, vigorously
reasserted in the report laid before the present Conference by the
American Committee, that in the event of war, subject to the
exceptions above noted, the private property of the citizens of
the respective belligerents should be exempt from capture or
seizure by the armed vessels of either party. It will be observed
that this view has the support of M. Autran. The American
Committee combine their reassertion of it in their report with
strongly-worded resolutions in favour of international action to
secure its supremacy. How (ai such action would be possible in
the meantime is a question which the Conference may perhaps
discuss* But that serious obstacles lie in the way of any effective
action of the kind must be apparent to anyone who considers the
other and conflicting views which the controversy has evoked.
By a large and influential section of European lawyers, the right
to capture private property at sea is strenuously m^iintained. The
assumed analogy between property on land and property at sea is
denied, and it is contended in the language of Captain Mahan,
that " two contending armies might as well agree to respect each
other's communications, as two belligerent States to guarantee
immunity to hostile commerce." In M. Fromageot's paper
below will be found a forcible presentation of this position.
Equally formidable as a difficulty in the way of such general
international action as the American Committee desire is the
view which is represented by M. Marais in his paper, that the
question whether private property at sea should enjoy immunity
( »3S )
from capture in time of war is one of policy which each country
mast answer for itself as the occasion arises.
Professor Westlake in his work on International Law (pp. 248-*
253), points out very clearly the considerations which might affect
the attitude of England in this matter. The substance of his
argument is as follows : (i.) If policy requires England to main-
tain the capture, there is nothing in law to oppose her doing so*
As long as the principal maritime powers uphold the claim, no
rule of the international society of Europe and America can exist
against it. (ii.) Merchant vessels may be used as transports, and
the sailors who navigate them can navigate regular transports,
even if they are not fit for service in the more regular part of the
navy. '' Circumstances may, therefore, well arise in which not
merely the maintenance of England's supremacy at sea, which is
so necessary for the support of her population, but even her safety
from invasion may require that an enemy's ships and sailors,
of whatever description, should be captured and detained."
(iiL) On the one hand, the transfer, in case of a war between
England and another sea-power, of British mercantile shipping
to neutral flags, would involve heavy war rates of insurance, and
the motive for such a transfer would be still further weakened
by the fact that interference with our commerce would, to a large
extent, take place under cover of the law of blockade. On the
other hand, the capture of traders at sea is not a means of
breaking down either the resources or the spirit of a great land
power. England is therefore free to consider the question of
insurance on its merits. ''The true conclusion appears to be
that a real cause, when such may exist, for desiring the detention
of the enemy's sailors and ships in order to prevent invasion or
the loss of our naval supremacy, is the only adequate motive for
maintaining the present practice, and that at the commencement
of a war England should offer to her enemy to enter with him
into a convention, determinable by either side on short notice,
for mutual abstention from maritime capture except under the
heads of blockade and contraband."
A. Wood-Renton.
( 236 )
I am permitted to quote, from a letter received from Professor
T. E. Holland, of Oxford, giving reasons why it was impossible
for him to join the Committee, the following expression of
opinion : —
" The question of immunity seems to me to be rather one for
politicians and shipowners than for lawyers. It is probable that
immunity would now be in the interest of Great Britain, but; if
so, the Continental governments, whatever may be Continental
legal opinion, are not likely to pledge themselves to it, and, even
if they did enter into a general convention to that effect, could
hardly be relied upon to stand by their bargain. I doubt the
expediency of making treaties about lines of conduct which may
affect national existence. The strain upon them is likely to be
too great for endurance, and one is afraid that one's country
might be lulled into security by a paper contract which might be
torn up on the outbreak of hostilities.''
Mr. J. Stanley Metcalfe writes as follows : —
If the " property " referred to above includes what has been
vaguely described as contraband of war, I am afraid that your first
question is not yet within the range of practical politics, and, so
far as this country is concerned, there is a strong feeling that our
Government has already made a serious mistake in agreeing to die
Declaration of Paris, without a definition of" contraband of war,"
and an agreement as to the carriage of food-stuffs.
This subject has been dealt with by Mr. Douglas Owen in his
* Declaration of War' (1889) by M. Edouard Clunet in his
interesting pamphlet on the * Droit Maritime International ' (Paris,
1898), and by Mr. T. G. Bowles, M.P., in *The Declaration of
Paris' (London, 1900).
The last-named states that " The Declaration of Paris was
unauthorized, contradictory, false, and no part of the law of
nations," that by it ** Great Britain is debarred from the use of the
most potent and merciful method of the capture and confiscation
of merchandize ; and is driven to rely alone upon the far less
( 237 )
potent and most unmerciful method of the slaughter and destruc-
tion of men, and that its falsehood in fact and principle invite its
repudiation in time of peace."
No one appears to favour this ill-considered attempt at im-
munity from capture — and it is probable that our Govern-
ment will be compelled to repudiate it and declare in favour of
''no immunity," unless, and until, some better scheme can be
devised.
Your second question can hardly be dealt with from an inter-
national point of view, but it has received, and continues to
receive, the most careful attention of British shipowners.
It first came before the Chamber of Shipping in 1887, when
the Chairman referred to a paper read by Sir George Baden-
Powell, M.P., on the ** State Guaiantee of War Risks," and sug-
gested that the Government might, if it thought proper, charge a
moderate war premium ; he also gave his reasons for regarding
the Declaration of Paris as a grave error.
Sir John Glover also dealt with it at some length in an article
which appeared in the Contemporary Review of May 1898, headed
"Ought the Stote to cover Maritime War Risks?" This was
followed by an article in the Shipping World of 30th November,
1898, from the pen of Mr. J. D. Milburn of Newcastle, who,
writing on the subject of War Risks: Mutual and State Insur-
ance," suggested that if the Government declined to enter upon a
deliberate scheme of absolute insurance against war risks, these
risks should be covered, in a modified form, on a mutual basis
" as, where and when they arise," and " when the calls shall have
reached a certain percentage, say, 2, 3 or 4 per cent of the sub-
scribed capital" (/>. ;;{^40o,ooo, ;if 600,000, or J[fiQo^ooo on a
capital of ^^20,000,000), '' the Mutual Association should call on
the Government for any loss in excess of this, or any other agreed
percentage."
I submitted these proposals to the Marquess of Salisbury, in
December 1898, and being informed that '^ Her Majesty's Govern-
ment do not see their way to support such a scheme " I made the
( 238 )
following report to the Directors of the North of England Pro-
tecting and Indemnity Association : —
"i. — If a Third Class of this Association be formed to cover
war risks, I presume that it will be on the basis of insured values,
for the protection of vessels under the British Flag, against the
risks excluded from an ordinary Policy on Hull by the * Free
from Capture and Seizure ' clause.
That this protection will commence from the Declaration of
War, or from such time as may be fixed by the Directors.
That there will be warranties against carrying Contraband of
War (excepting so far as shipments made before a Declaration of
War are concerned) and running blockades, and that this protec-
tion shall continue from year to year, so far as hostilities are con-
cerned in which Great Britain is not a belligerent
2. — As freights would increase by leaps and bounds, according
to the extent to which British tonnage is withdrawn from the
carrying trade of the world, one member of the Association should
not be able to benefit at the expense of another, and as we cannot
foresee the extent or whereabouts of War Risks, or the important
issues likely to be raised if Great Britain he a belligerent^ it appears
impossible to fix, in advance, an equitable rate of contribution on
a mutual basis to meet such a contingency.
3. — I, therefore, submit that, so far as War Risks are concerned,
w/un Great Britain is one of the belligerents^ the protection afforded
by this Third Class should only extend to the completion of
voyages or contracts (with certain limits to be afterwards defined)
commenced before the Declaration of War.
4. — That immediately war is declared by, or against. Great
Britain, the rules shall provide for calling a meeting to extend or
define the protection to be thereafter afforded by this Class, or to
stipulate for such safeguards as to sailing with convoy, etc, as
may be necessary for placing the risk on an equitable and mutual
basis.
The alternatives appear to be : — (j) To cover War Risks as,
when, and where, they arise; all members contributing on the
same basis, {h) To fix a nominal premium for each ship and
( 239 )
each voyage, (c) To fix a basis of contribution for each trade on
the part system, in vogue with many of the dubs about thirty
years aga
As these risks vary to such an enormous extent,
(a) Is unfair and, therefore, impracticable from a mutual
insurance point of view, unless combined with a warranty of
sailing under convoy, with an adequate return for vessels whilst
in a safe port
(3) Is unworkable, as these rates vary from day to day, and
from hour to hour, subject, principally, to the extent of panic
which has been worked up on the Stock Exchange or at Lloyd's.
(c) Is open to a similar objection, but if the extent to which
each trade should be handicapped for extra hazardous risks
were agreed \o by the Members after war had been declared and
the belligerents were known, a fairly equitable basis might be
arrived at
If one, or not more than two, nations combine against Great
Britain, our Navy should be able to preserve command of the
9eas, or our Government will be expected to indemnify shipowners
against any consequent loss.
Should the combination against us be more powerful, or the
risk greater, shipowners will have an opportunity of proving that
they can rise superior to mere business considerations, as ' contra-
band ' may become the one thing needful so far as our coaling
stations, our colonies, or our home supplies are concerned, and
blockade running may be a national necessity. The country at
laxge, being interested, will also be able to show that a so-called
' Nation of Shopkeepers ' can still respond to Nelson's signal
In the meantime, this third class would provide against the
consequences of war between foreign nations, and against the
frequent rumours of war in which England is expected to take
part It would also protect members until the termination of
contracts entered into before a declaration of war by or against
this country, and when something is known of the whereabouts,
the nature and probable extent of our war risks, shipowners, after
conferring with the Government, can then decide on the best
( 240 )
means of mutual protection, instead of now rushing into an
unknown liability, the ruinous extent of which they cannot even
estimate/'
This scheme was adopted by the Directors of the North of
England Protecting and Indemnity Association, and in November
1898 a Third Class of this Association was formed, the capital of
which is now upwards of ;^i8,ooo,oco, the following being the
principal rule by which it is governed : —
** 6. — ^When, in the opinion of the Directors, war between Great
Britain and another maritime power is imminent, or when war shall
break out between Great Britain and another maritime power, the
Directors shall at once, if possible, consult the Ministers of the
Crown, and shall also immediately summon a general meeting
of the members for the purpose of submitting to them such
additional mles, or such alterations or repeal of the existing
rules as may be necessary, or desirable, in the interests of the
members, or of the Empire. The members at such general
meeting may adopt the additional rules, or alterations, or repeal,
with such amendments or additional rules as they may think fit,
whether defining, enlarging, or restricting in any way whatsoever
the protection and indemnity thereafter to be afforded to members
of this class, or making any differences between the steamships
entered by forming additional sections, or by varying the rates of
contribution payable by members, according to any circumstance
affecting, or which may be considered to affect, the war risks to
which they are, or may be, exposed. Unless, and until, such
general meeting is summoned, and unless, and until, the members
at such general meeting alter, or add to, or repeal, the rules, and
until the date or dates fixed by the members at such general
meeting for the altered or additional rules or repeal to come into
force and take effect, and except as provided by such altered or
additional rules or repeal, the protection and indemnity afforded
by this class shall be, and continue to be, as provided by the
rules existing at the time."
The effect of this, so fat as British shipowners are concerned,
is to afford complete indemnification for capture at sea, but until
( 241 )
''swonis are beaten into ploughshares" it is probable tltat each
nation must work out its own salvation.
Dr. Hkmri Fromageot (Paris) has kindly contributed the
following expression of opinion : —
La question de I'inviolabilitd de la propri^t^ priv^e ennemie
sur mer en temps de guerre, se ram^ne k savoir si les hostilit^s
dirigdes sur mer contre le commerce de Tennemi, si le iait de
barrer k Tennemi les grandes routes commerciales du globe,
d'an^ter et capturer ses navires marchands, sont des actes de
guerre pouvant se justifier et constituent Texercice legitime d'un
droit appartenant aux bellig^rants— ou si, au contraire, ce sont Ik
des actes de barbarie, des violences injustifi^es en fait et en droit,
qu'il importe aux pays civilises de £ure disparattre de leur
conduite en temps de guerre.
A mon avis, il y a lieu d'admettre la premiere solution et de
d&larer que les hostilitds contre le commerce maritime consti-
tuent I'exercice d'un droit, qu'on ne saurait ddnier au bellig^rant
Les raisons, sur lesquelles cette opinion est basde, sont les
suivantes :
La guerre n'est pas simplement comme on Ta dit (Mr. Danson,
' Our Commerce in War,' p. ii) " a fair trial of strength between
the organized forces of hostile Governments " ; ce n'est pas un
championnat entre deux armies, en vue de savoir laquelle est la
plus forte. C'est Teffort violent par lequel un Etat cherche k
imposer sa volontd k un autre Etat ou k lui r^sister.
Sur terre le moyen d'action se ram^ne k I'envahissement et k
Inoccupation du territoire ; car on arrSte ainsi la vie nationale de
I'ennemi et on le force k traiter.
Sur mer, la nature des choses fait que, pour arrSter la vie
nationale, le m^me moyen d'action est impossible, ^occupation
est, en fait, irrdalisable et, en droit, elle serait contraire au droit
des neutres. La mer appartient k tous, chacun a le droit de s'en
servir, mais personne n'a celui de se Tapproprier. Pour atteindre
Tennemi le moyen consiste alors k priver celui- ci de Tavantage et
de la force que lui procure la mer, c'est-k-dire k le priver de ses
R
( 242 )
communications, k rompre et k anfentir son trafic et ?t apporter
ainsiy dans sa vie nationale, un trouble qui assure ou facilite sa
d^faite.
Prdtendre amener les Etats belligdrants, ayant des int^r^ts
maritimes importants, k s'engager k ne pas interrompre les com-
munications de Tennemi sur mer, k ne pas arr^ter son trafic, h. y
iaisser circuler ses navires, revicnt k leur demander de renoncer
b^n^volement h, un puissant moyen d'action, parfois peut-^tre au
plus puissant moyen de porter atteinte k la vie nationale de
I'adversaire pour lui imposer sa volontd " It is a fair deduction
from analogy," dit le Capt. A, T. Mahan (* Interest of America in
Sea Power,' p. 134), "that two contending armies might as well
agree to respect each other's communications, as two belligerent
states to guarantee immunity to hostile commerce."
On oppose g^n^ralement le principe d'aprfes lequel la guerre
est une lutte entre Etats et non une lutte contre les individus,
principe d'oh Ton d^duit que sur terre le bellig^rant doit, autant
que possible, respecter la propri^td priv^e. A cet ^gard il y a
lieu de faire observer: 1° que, m^me sur terre, on est bien forc^
de se soumettre k la destruction de la propridt^ priv^, lorsque
cette destruction est la consequence inevitable d'un acte d'hostilit^
ndcessaire ; 2° que la situation n'est pas la m^me sur terre que
sur mer. Dans le premier cas, le particulier ne peut pas, le plus
souvent, prot^ger sa propriety contre les vicissitudes de la guerre.
Dans le second cas, c'est volontairement qu'il Texpose aux risques
des hostilitds; 3° qu'enfin la destruction ou la capture dela
propriety priv^e n'est pas le but mais seulement la consequence
des hostilites sur mer. Le but est Tarr^t des communications
maritimes, quelles qu*elles soient, de Tennemi. " Is it not clear,"
disait encore rdcemment T^minent Capt A. T. Mahan dans son
langage si tranchant et si vivant (ibid p. 133), "that maritime
commerce occupies, to the power of a maritime State, the precise
nourishing function that the communications of an Army supply
to the Army ? Blows at commerce are blows at the communica-
tions of the State ; they intercept its nourishment, they starve its
life, they cut the roots of its power, the sinews of its war. While
( »43 )
war remains a factor, a sad but inevitable factor of our history,
it is a fond hope that commerce can be exempt from its opera«
tions, because b very truth, blows against commerce are the
most deadly that can be strucL"
Toutefois le droit du bellig^rant doit recevoir deux limites:
i"" les hostilit^s dirig^ contre les communications et le trafic de
Tennemi doivent £tre conduites militairement ; c'est ce que con-
sacre Tabolition de la course priv^e; 2° le droit des belligdrants ne
doit pas porter atteinte k la liberty de communication des neutres,
tant que ceux<i ne font pas de cette liberty un usage hostile;
c'est ce que sanctionnent les regies concemant la contrebande.
En r^sum^, et sous r^rve des observations d-dessus, je ne
crois pas possible la proclamation de Timmunit^ de la propridt^
priv^e ennemie sur mer en temps de guerre.
Dr. Autran (Marseilles) writes as follows : —
II convient de diviser la question.
Les solutions sont en effet diff^^rentes suivant qu'il s'agit de
biens appartenant k des neutres ou de biens appartenant k des
sujets des nations en guerre Tune avec I'autre.
Pour les neutres la mer doit rester libre et les bellig^rants
doivent respecter leur commerce et leur propri^td C'est Ik une
obligation non seulement de la courtoisie intemationale mais aussi
du droit naturel et du respect de la liberty I^s nations ^trang^res
k la lutte demeurent en paix avec les bellig^rants : nul d'entre
ces demiers n'a le droit d'obliger un peuple en bons termes avec
les nations aux prises k se m^ler k une guerre qui ne Tint^resse
point ni Temp^her de se livrer k ses operations commercialese
Les nations en lutte arm^e ne peuvent done pas interdire aux
neutres le commerce entre eux ni avec les autres bellig^rants tant
qu'il n'y a pas violation de la neutrality
Dans Texercice du commerce entre les neutres et les belli-
g^rants il faut envisager trois situations : dans la premiere le navire
et la cargaison appartiennent k la nation neutre ; dans la deuxi^me
le navire est la propriety d'un bellig^rant, la cargaison appartient
k un neutre ; dans la troisieme le navire est k un neutre, la car-
R 2
( 244 )
gaison ^ un bellig^rant Seules les deux derni^res situations peuvent
donner lieu k un conflit entre deux principes : le premier d'aprfes
lequel la guerre favorise ou crde le droit de prise au profit d'un
bellig^rant ; d'apr^s le deuxibme les relations pacifiques favorisent
orient Timmunit^ des neutres : quel est celui des deux principes
qui <!oit prdvaloir?
Disons-le tout de suite : k notre avis le principe de Timmunit^
de la propridt^ neutre doit ^tre toujours appliqu^, le commerce
doit 6tre libre et quelle que soit la nationality du navire la
marchandise neutre doit $tre conserve k son propri^taire. Nul
des bellig^rants ne peut s'en emparer sans s'exposer k violer les
regies du droit natureL II faut toujours respecter I'ind^pendance
des nations et poser en principe I'immunit^ des neutres.
Jetons un regard vers le pass^ : nous voyons que le Consulat
de la mer pla9ait sous la sauvegarde de la coutume les biens
appaitenant k des " amis." Le terme ''ami" ^it k cette ^poque
r^quivalent du mot neutre. S'agissait-il d'une cargaison ennemie
sur un navire ami, seule la premibre pouvait 6tre saisie: dans
rhypothfese inverse d'un navire ennemi transportant des marchan-
dises amies, le navire seul pouvait Stre saisi et dans ce cas le
saisissant devait le conduire dans un port de sa nation oU il
recevait le fr^ de la marchandise et remettait celle-ci entre les
mains de ses propridtaires. Le pavilion neutre ne couvrait pas
la marchandise ennemie, le pavilion ennemi ne confisquait pas la
marchandise neutre.
Depuis cette ^poque le principe de Timmunit^ de la propriAd
des neutres n'a fait que progresscr. Les divers trait^s europ^ens
(Utrecht 17 13, Aix la Chapelle 1748, ceux de 1778 entre la
France et les Etats-Unis) ont tons decide que la marchandise
suivrait le sort du pavilion, et le pacte de 1780 entre la Russie et
les nations hveraines de la Baltique, connu sous le nom de pre-
miere neutrality arm^, proclamait la liberty du commerce entre
les neutres et les belligdrants ; libre aussi devait 6tre la marchan-
dise appartenant k des bellig^rants sur des navires neutres.
Exception cependant devait ^tre faite k ce principe pour le cas
de contrebande de guerre.
( ns )
La deuxi^me neutrality armde de 1800 ajouta au principe du
pacte dc 1780 le principe de rimmunit^ dcs navires convoy^ par
des navires de guerre neutres.
Le congr^s de Paris de 1856 (16 Avril), auquel adhdi^rent
presque toutes les nations k Texception des £tats-Unis, du Mexique
et de TEspagne, decida que le pavilion neutre couvrirait k Tavenir
la marchandise ennemie sauf la contrebande de guerre ; la mar-
chandise neutre, exception faite pour la contrebande de guerre,
n'est pas saisissable sous pavilion ennemL
C'est done k la suite de conventions entre les diff^rents pays
que Ton admet k pen pr^s universellement aujourd'hui le principe
que le pavilion couvre la marchandise et que la marchandise
neutre ne peut 6tre saisie. Aujourd'hui done la r^ponse k la
question de Timmunitd de la propridt^ d'un neutre ne doit plus
faire Tobjet d'aucun doute.
Mais il convient d'aller encore plus loin et il est k souhaiter
que les nations abandonnant les demiers vestiges de la barbaric
proclament qu'k Tavenir les belligdrants devront respecter sur
mer les biens des sujets des pays avec lesquels ils sont en guerre.
C'est Ik un devoir que nous imposent la morale, les progrbs du
droit, et de la civilisation.
II est un principe de droit public international que la guerre
a lieu entre Etats. II convient done de limiter les horreurs dc
luttes armies k ce que j*appellerai le minimum ndcessaire.
On se demandera avec ^tonnement plus tard si la civilisation
ne subit pas de recul, par suite de quelle contradiction on a
permis k des peuples en dtat de guerre maritime de s'emparer des
biens des particuliers du pays ennemi alors que dans les guerres
terrestres le droit qui d^coule des conventions Internationales
prohibe de tels actes. Rappelons-nous la grande discussion qui
s'eleva en 187 1 apr^s la guerre franco-allemande k propos des
biens de la Banque de France— celle-ci devant dtre consid^rde
comme une institution publique, unc Banque d'etat, propri^t^ du
gouvemement fran9ais, ou comme une banque priv^e. Du
moment que Ton se trouvait en presence d'un bien appartenant k
des particuliers ce bien devait etre respectd La question post^e
( 246 )
par r International Law Association est identique. Si les principes
universellemcnt admis en matibre de guerre terrestre sont vrais,
8ont conformes ^ Tdquit^ et au droit positif, pourquoi ne recon-
naissent-ils pas leurs applications sur mer?
Nous assistons malheureusement depuis quelques ann^es k
un recul de certaines id^es g^n^reuses de justice, de tolerance,
d'humanitd II est bon par suite que dans les reunions de juris-
consultes et d'dconomistes, on conserve les traditions philoso-
phiques qui en am^nent progressivemeni les progrbs de Thunaanit^
et que Ton oppose les principes du droit sup^rieur de Thumanit^
aux abus de la force brutale.
Nous admettons dvidemment que les nations en lutte sdent le
droit d*emp^her que les sujets des belHg<frants ou les neutres ne
se livrent h, la contrebande de guerre et une exception s'impose en
cette matibre au principe gdndral de Timmunitd de la propriettf
priv^e. Mais ici encore il faudrait ddimiter d'une fa9on precise et
claire quels objets peuvent ou doivent ndcessairement constituer
de la contrebande de guerre.
Le commerce ne doit pas Stre livr^ k Tarbitraire des decisions
prises II cet ^gard par les nations bellig^rantes.
£n r^sum^, si la guerre est encore en I'^tat actuel de la civilisa-
tion un mal n^cessaire, il appartient aux gouvemements d'en res
treindre le plus possible les consequences ficheuses, et il convien-
drait de rendre inviolable sur mer la propri^t^ privde aussi bien
ennemie que neutre, le droit de prise tel qu'il existe actuellement
constituant un odieux vestige de la barbarie des temps passes.
M. Georges Marais (Paris) has contributed the following
article : —
Depuis longtemps, publicistes et ^conomistes engagcnt les
Etats civilises k s'entendre, pendant les jours heureux et calmes
de la paix, sur un certain nombre de questions qui se poseront
avec acuite' au lendemain de toute declaration de guerre.
( «47 )
Parmi ces questions, il en est une qui int^resse au plus haut
point les Grandes Puissances des deux Continents : ** La propridt^
priv^e sur mer doit-elle pour Tavenir jouir, en cas de guerre, de
Timmunit^ la plus complete ou au contraire restera-t-elle, sui-
vant I6s usages anciens, soumise aux captures des puissances
ennemies?"
£n cas de guerre continentale, en effet, les usages, maintenant
h peu prbs g^n^ralement ^tablis, conduisent les bellig^rants k
respecter la propriA^ priv^e.
C'est ainsi que le 8 ao^t 1870, un Ordre adress^ k T Annexe
Allemande, par le roi de Prusse, ^tait con9u en ces termes :
" Nous ne faisons pas la guerre aux citoyens paisibles ; c'est le
devoir au contraire de tout soldat jaloux de son honneur, de pro-
t^er la propridt^ prive'e,"
Ce principe de Timmunit^ semble devoir dtre appliqu^ tout
naturellement quand la propridt^ se trouve en dehors d'op^rations
strat^ques imm^^diates. De plus, en ce qui concerne, notam-
menty la propri^^ mobilibre, le pillage, recompense jadis donn^
par le chef h, ses soldats, apr^ quelque action d'^clat ou quelque
efiort soutenu, paratt ddfinitivement aboli et demeure r^prouv^ par
la conscience mdme du belligdrant vainqueur. Ce n'est pas k
dire que dans les guerres les plus r^entes, les soldats victorieux
ne se soient pas livres k des actes d'appropriation sur les biens du
vaincu ; mais cette pratique, sauf quelques restrictions que nous
examinerons plus loin, ^mane de Tinitiative d'individus peu scru-
puleux, plus ou moins livres k eux-m^mes et non d*un ordre
officiel prescrivant un ensemble de mesures collectives.
On donne d*ailleurs k ces actes isoMs le nom de pillage, de
vol, et de rapines.
Pourquoi d^s lors, cette m^e rbgle^ ou plutot cct usage
reconnu utile et qui est d'une application heureuse dans les guerres
continentales, ne passerait-il pas dans la pratique des guerres
maritimes de Favenir ?
En cas d'invasion, Fennenu ne capture pas des balles de coton,
par exemple, qu'il tiottve r^post^es sous un hangar ou dans un
entrepot; pourquoi, au contraire, s'empare-t-il de ces memes
( 248 )
tnatibres premiferes, si elles sont chargdes sur un navire de com-
merce ennemi, k destination d'un port neulre ?
Est-il possible de s'entendre entre Nations sur ce point ? Des
trait^s intemationaux doivent-ils dtre conclus k ce sujet ? Grave
et importante question, que nous nous proposons d'dtudier.
II.
D^terminons tout d'abord quelle conception la conscience
doit se faire de la guerre terrestre ou maritime. Nous en d^-
duirons ndcessairement le but et les moyens d'action de toutes
les guerres futures.
Un jurisconsulte c^lfebre, Bluntschli, d^finit la guerre **une
contestation juridique entre les Etats, en tant que parties belli-
g^rantes, au sujet du droit public."
— (* Droit des gens/ rfegle 511.)
Malgr^ la grande notori^t^ de son auteur, cette definition nous
semble ^tre absolument enon^e.
En effet, une contestation juridique suppose un Tribunal
charge de dire le droit et susceptible de procurer k la partie
gagnante les moyens n^cessaires pour assiurer rex^cution de sa
sentence.
Entre Etats, il n'est rien de semblable.
Alors meme que, sous Taction de tentatives r^centes et peut-
fitre prematur^es, les peuples arriveraient k constituer un Tribunal
international, qui done donnerait k ce nouvel organisme les
moyens mat^riels de contraindre ses justiciables h respecter les
decisions qu'il rendrait ?
La guerre n'est done pas et ne peut ^tre un 6t3X juridique.
Sans doute, la guerre delate k Toccasion de droits mdconnus et
Isolds, quelquefois par les deux belligdrants.
II y a des guerres justes; d'autres injustes. A titre rdtro-
spectif et pour montrer Tabime qui sdpare la philosophie de la
pratique, la justice initiale, du rdsultat final, n*est-il pas piquant
de citer les lignes suivantes, dcrites par un homme qui se livra k
une agression, au moins inattendue, contre la Saxe autrichienne, et
( 249 )
qui codp^ra au partage d'un royaumc que ses dissensions in-
t^rieures et ses factions politiques d^signaient k ses puissants
voisins comme une proie facile.
" Toutcs les guerres qui n'auront pour but que de repousser
les usurpateurS) de maintenir les droits legitimes, de garantir la
liberty de Tunivers et d'^viter les violences et les oppressions des
ambitieux, sont conformes k la justice."
— (Fr^d^ric de Prusse, * Anti-Machiavel/ chp. 26.)
Bien plus franche, et surtout plus conforme aux faits, est la
definition donn^e par le g^ndral de Clausewitz, dans son ' Traitt^
de la Guerre' (I i, pg. 115) : —
" La guerre est un acte de violence, destind k forcer Tadver*
sairc h se soumettre ^ notre volontd"
Oui, la guerre est un acte et non pas Texercice d'un droit ou
la mise en oeuvre d'une contestation juridique; son moyen est
la violence, et son but la soumission du vaincu h. la volont^ du
vainqueur.
La conscience des peuples pourra protester ; aucune prescript
tion ne couvrira jamais Tapplication de la cruelle maxime '' La
Force prime le Droit," mais celle-d n'en restera pas moins la
maitresse demibre et inconlest^e des consequences de la guerre
et des destinies des peuples.
Que les moralistes d^plorent ce r^sultat et s'en indignent, on
le comprend ; mais Fhomme d'Etat responsable devant son pays
des int^r^ts dont il a assum^ la gestion, n'a pas le droit de s'en
d^gager, il lui importe d'^viter les chimbres d^cevantes et humani-
taires, toujours suivies de r^alit^s terribles.
Si, par n^cessit^ de defense nationale, on admet ce point
primordial, nul ne si'etonnera que nous r^pudions les principes
abstraits qui, sous Tinfluence de la philosophie sensible du dix-
huitibme si^cle, furent proclam^s par les hommes d'Etat du temps
de Napoleon L
Portalis, dans son discours d'inauguration au Conseil des
Prises, le 14 Aortal an 8, disait : ** C*est le rapport des choses et
non des personnes qui constitue la guerre ; " et Talleyrand, dans
( 2SO )
une lettre k Napol^n, ins^r^e au Moniieur Universei du 5
D^cembre 1806, soutenait que : *' Trois sibcles de civilisation ont
donn^ k I'Europe un droit des gens, que, selon Texpression d'un
^crivain illustre, la nature humaine ne saurait assez reconnattre.
Ce droit est fond^ sur le principe que les Nations doivent se
fairc dans la Paix le plus de bien, pt dans la Guerre le moins de
mal possible."
Sous ces phrases un peu pompeuses, se d^gage le principe
que la guerre est une relation accidentelle d'Etat k Etat et non
pas d*individus ^ individus,
De meme encore le 11 Ao<it 1870, Guillaume de Prusse, dans
sa proclamation au Peuple fran9aiS| ^crivait : ** Je fais la guerre
aux soldatSy et ndn aux citoyens fraugais."
L*Angleterre, au contraire, si puissantc et si prospfere dans la
paix, n'a que peu de goilt dans la guerre pour cet id^alisme ;
nous n'osons Ten blimer, car son appreciation des choses de la
guerre correspond exactement au but que TEtat, qui se dtk:ide ^
entreprendre une guerre, doit poursuivre par tous les moyens
possibles, ces moyens fussent-ils cruels.
Si TEmpire firitannique ne manifeste en ces matibres aucun
enthousiasme pour les chim^res, c'est que ses tendances naturelles
le portent vers les r^alitds concretes. De tous temps, les
philosophes anglais ont adopts et ses hommes d'Etat appliqu^ la
formule suivante donn^ par les Grotius : '^ Chaque sujet est si
intimement lid k TEtat, que la guerre le rend ennemi tout k la
fois de TEtat ennemi, et des sujets de cet Etat."
Cette maxime nous semble devoir dtre appliqude aux guerres
futures, malgrd les principes de civilisation humanitaire dont se
targuent volontiers les pays continentaux pendant le temps de
paix, sauf k les oublier dans le feu des hostilitds.
En effet, les peuples ne sont-ils pas contraints, en quelque
sorte, par la force m^e des choses, d*user de tous les moyens
en leur pouvoir pour courber Tadversaire sous leur volontt^ et
amener finalement sa soumission, de manifere k ce qu'il ne puisse
plus se soustraire au dernier moment, k Text^cution des conditions
du traitd de paix.
( 2St )
La guerre continentale prouve ce r^sultat par Finvasion du
territoire de Tennemi, par le trouble et Tarrit apport^ dans sa vie
^onomique, par la mort qui fauche et d^truit les hommes.
En un mot, partout apparatt Temploi de la violence pour
atteindre, coOte que coiite, le but d^sir^ ; sans doute, par Teffet
d'une sorte de convention tacite entre les Etats, la propri^t^
privde des citoyens est respect^ en principe par les belligdrants,
mais ce respect — nous aurons Toccasion de le montrer plus loin —
ne s'exerce qu'autant qu'il n'entrave pas les operations des Armies
en campagne.
Pourquoi dfes lors la propri^t^ maritime priviJe jouirait-elle
d'une immunity particuli^re dans le cas oh Tennemi penserait que,
si la destruction de cette propri^t^ doit diminuer dans une mesure
appreciable les forces de TEtat adverse et troublcr si profond^-
ment sa vie ^conomique qu'il y ait de grandes chances pour
amener cet Etat h. se soumettre aux conditions que son adversaire
se propose de lui dieter? Dhs lors encore, n*est-il pas con-
tradictoire avec TAat de guerre qu'une nation, en temps de paix,
consente h, se lier par un traits formel et perde sa liberty d'action
pour le cas ob une guerre viendrait k ^clater ?
La question cependant a ^t^ et est actuellement trhs dis-
cut&.
Les arguments produits des deux cotds sont des plus sdrieux
il convient de les dtudier.
in.
Au point de vue pratique, il est permis de dire que Texp^ri-
ence n'a pas confirm^ les formules de la th^orie.
Les exemples historiques, invoqu^ par les partisans de
rimmunit^, n'ont qu'une trfes faible vaJeur. lis ne s'appliquent
qu*k des cas ob la lutte maritime n'a eu ou ne devait avoir qu'une
influence limit^e sur Tissue de la guerre.
Le philosophe fran^ais Mably paratt avoir ^t^ un des premiers
champions de Timmunitd de la "propridt^ priv^e sur mer en
( 252 )
cas de guerre." Dfes 1785, un traits Russo-Am^ricain pose et
proclame ce principe. II est h peine besoin de faire remarquer
que ce traits n'a pas produit et ne pouvait pas avoir de con-
sequences pratiques.
Mentionnons seulement, car nous T^tudierons un peu plus
loin, la D^laration de Paris du 16 Avril 1856, aux termes de
laquelle " le pavilion neutre couvre la marchandise ennemie, k
Texception de la contrebande de guerre."
II y a Ik un cas bien precis d'une immunity accord^e h. la
propriety priv^e ennemie, mais les Etats signataires de la
Declaration de Paris ont eu surtout en vue d'^viter de l^ser les
intdrSts des neutres transporteurs de marchandises ennemies.
En 1866, la Prusse, Tltalie et rAutriche renoncferent respective-
ment au droit de capturer leurs navires de commerce.
En 1870, le roi de Prusse renonce ^galement au m^me droit
sans m^me ^tre assur^ que la reciprocity serait accord^e k ses
sujets. " Les navires marchands fran9ais ne pourront ^tre ni
amends, ni captures par la Marine federale."
Ajoutons d'ailleurs que, vers la fin de la guerre, en presence
de la conduite contraire du Gouvernement fran9ais, TAUemagne
n'a pas observe cette resolution.
II etait d'ailleurs facile de comprendre, d priori^ en 1866,
comme en 1870, que le sort des Etats engages dans ces redoubt-
ables confiits se deciderait sur les champs de bataille et que les
luttes maritimes resteraient sans influence sur le resultat final.
Mentionnons, enfin, un traite du m^me ordre, signe en 1871,
entre Tltalie et les Etats-Unis. La propriete privee circulera
librement en cas de guerre : elle ne sera saisissable qu'au cas q\x
elle tenterait de forcer un blocus.
Tels sont les actes diplomatiques principaux qui peuvent
£tre cites en faveur de Timmunite. On le voit, leur influence est
sans portee, car la question, pour etre interessante, suppose
ndcessairement que la lutte existe entre deux ou plusieurs grands
pays possesseurs de puissantes marines.
( »S3 )
IV.
IndiquoQS, toutefois, avant de trailer la question sous ce
dernier point de vue, quelques cas particuliers qui nous paraissent
ddriver de la rfegle d'immunit^
Le 22 aLodt 1864, divers Etats, parmi lesquels la Belgique, le
Danemark, TEspagne, la France, TlUlie, la Prusse, la Suisse, etc.,
signent la Convention dite de Genbve. Par cette convention,
les hopitaux et leur personnel ont 6ti neutralises ; il a ^t^ de plus
stipule entre les Hautes Parties contractantes que les blesses des
Etats sigDataires seraient r^ciproquement soign^s et trait^s par
les bellig^rants, sans distinction de nationality.
En 1868 quelques articles furent ajoutds k Facte de 1864.
lis avaient pour but d'exondrer du droit de visite les navires
appartenant k des Soci^t^s particuli^res et destines, en cas de
guerre maritime, h, transporter et k secounr les blesses. Ces
articles additionnels n'ont pas ^t^ ratifies : il serait desirable
quails le fussent.
Le principe, sur lequel repose la Convention de Genfeve,
s'inspire de sentiments si nobles et si dev^s qu'il doit recevoir une
approbation sans reserves.
Nous ne voyons non plus aucun inconvenient k accorder
rimmunite aux navires charges exclusivement de missions
scientifiques. D*abord, leur nombre ne sera que fort insignifiant ;
enfin, la guerre est une situation essentiellement temporaire et
il serait ficheux de priver peut-^tre pour toujours la civilisation de
d^couvertes conquises siu: la Nature, en se livrant h. des actes de
violence contre les navires que leur destination doit prot^ger et
ddfendre.
V.
Alors, se pose la question dans sa gendralite, en ce qui concerne
la propriete privde.
Pour la trailer, il est indispensable de rappeler, au moins tr^s
( *S4 )
sommairement, les rfegles qui ont 6t6 suivies en Angleterre et en
France avant et depuis le i6 Avril 1856, date de la Declaration
de Paris.
En France, pendant les gucrres maritimes du Premier Empire,
le Gouvernement avait donnd Tordre de capturer tout ce qui
naviguait sous pavilion ennemi; TAngleterre ne proc^dait d'ail-
leurs pas autrement: "Sont saisissables," avait d^clard Lord
Stowell, Juge des Prises pendant cette p^riode, " les cargaisons
ennemies quelles qu'elles soient, quels que soient les navires et
quelle que soit la destination."
De plus, la course ^tait autorisde, les bellig^rants delivraient
facilement des lettres de marque k des corsaires tenths plutot par
I'appit d*une rapide fortune que par le souci de d^fendre les
int^r^ts de la nation k laquelle ils appartenaient
Cet ensemble de regies, ou plutdt, cette absence de Droit,
causait de graves prejudices aux neutres et exposait les belli-
g^rants k d*incessantes reclamations de la part de ceux-cL
En 1856, aprfes la guerre de Crim^e, 1* Angleterre, TAutriche, la
France, la Russie, la Sardaigne et la Turquie essay&rent, par la
Declaration de Paris du 16 Avril, d'att^nuer au moins ces incon-
vdnients.
Les puissances signataires s'engagbrent k respecter, en cas de
guerre entre elles, quatre rfegles devenues depuis fort c^lbbres :
I. La course etait abolie. 2. Le pavilion neutre couvrait la
marchandise ennemie, k Texception de la contrebande de
guerre. 3. La marchandise neutre, k Texception de la
contrebande de guerre, n'^tait pas saisissable sous pavilion
ennemL 4. Le blocus pour dtre obligatoire devait ^tre
eflfecti£
II n'entre pas dans le cadre de cette courte etude d*analyser
chacune de ces regies et de rappeler, m^me sommairement, les
principales controverses et les interpretations auxquelles elles ont
donne lieu.
Indiquons seulemcnt pour eviter tout mecompte aux nations
intcressees que les regies Nos. a and 3 ne sont pas comprises de
( *S5 )
la in£me manifere en Angleterre ct en France. D'aprbs la doc-
trine fran9aise sont eunemis les navires ayant le droit de porter
le pavilion ennemi, c'est-k-dire appartenant k des ennemis.
L'Angleterre au contraire consid^re comme ennemi tout navire
appartenant m^me h, an neutre, si ce sujet rdside pendant le temps
de la guerre chez Tennemi. II y a dans cette interpretation una
appr^iation beaucoup plus pratique des n^essit^s de la guerre
que dans la throne frangaise.
Le navire appartenant h. un neutre rdsidant chez Tennemi
rend, en efifet, des services k la nation bellig^rante. Le fr^t est
d^pens^ chez Tennemi Celui-ci a le droit de r^quisitionner le
navire pour I'utiliser comme moyen de transport, peut-dtre mtoe
de combat En tous cas, ce bitiment contribue h la prospdrit^
^conomique du bellig^rant: il importe done de supprimer cet
dement d'action.
Quel dommage, au contraire, causerait k TAngleterre en cas
d'une guerre avec TAllemagne un navire dont le propridtaire
allemand r^siderait, ou plutdt aurait son domicile, aux Etats-Unis ?
Nulle crainte que cet Allemand participe directement ou indirecte-
ment k la lutte engag^e. II ne se rendra done ennemi que si,
ob^issant k des considerations patriotiques, il transportait, pendant
le cours des hostibt^s, son domicile dans son pays d'origine.
La France, au contraire, reste fidble II son temperament
generalement logique et deducti£ Un principe une fois posd,
elle lui fait produire toutes ses consequences quelles qu'en soient
les repercussions. Le navire, dont le proprietaire serait un neutre
residant chez Tennemi, ne serait pas saisi ; au contraire celui,
dont le proprietaire est un sujet ennemi, quoique residant chez un
neutre, pourrait toe capture.
Nous avouons qu'entre ces divers systbmes, toutes nos sym-
pathies se portent vers la doctrine anglaise. II nous semble que
cette conception repond bien davantage k ce qui doit 6tre le but
premier de toute mesure prescrite pour le temps de guerre : affaiblir
les forces de Tennemi, Fafifamer, le paralyser, pour enfin le reduire
k merd.
( 256 )
VI.
Cette id^e directrice qui nous parait devoir inspirer la conduite
des bellig^rants nous conduit tihs naturellement h, la solution que
nous proposons dans ce travail : la propridt^ priv^e, en temps de
guerre, ne doit point jouir de Fimmunit^, par cette seule et unique
raison qu'elle est propri^td priv^e. On objectera sans doute qu'il
parait illogique et contradictoire de refuser k la propridtd maritime
une immunity qu'onaccorde universellement k la propriA^ ter-
restre. Pourquoi ce qu*on reconnalt utile et Equitable dans un
cas, ne Test-il plus dans Vautre : et notre th^se ne court-elle pas
le p^ril d'etre consid^r^e comme un retour mal d^guis^ aux
pratiques des temps oU la civilisation se ressentait encore des
cruaut^s de la barbarie ?
Tout d'abord, est-il bien certain qu'en cas de guerre continen-
tale, la propri^t^ priv^e jouisse d'une immunity aussi absolue, que
le principe, expos^ plus haut, le laisserait supposer ?
On ne briile plus les maisons dans lesquelles des actes de
defense ou d'hostilitd ne sont pas commis. Soit, mais croit-on,
que m^me en I'absence d'actes de cette nature, le commandant
d'une troupe h^sitera h, ordonner la destruction d'un Edifice priv^,
ou m^me d'un village entier, si ceux-ci sont susceptibles de
masquer le tir de son infanterie dans une hypothese tactique, qui
ne se produira d'ailleurs peut-fitre pas ?
Une armcfe bat en retraite, elle est poursuivie par un ennemi
chez lequel le ravitaillenient ne s'opfere que p^niblement; qui
done accusera le chef s'il donne Tordre de ne laisser derrifere lui
qu'un d&ert ?
La n^cessit^ d'affumer Tennemi, et d'afFaiblir la vigueur de sa
poursuite s'il le pent, de la paralyser, n'est-il pas son premier et
unique devoir vis-k-vis de son pays ?
A un autre point de vue, est-il discutable que les moyens dc
transport sont saisissables par Tennemi s'il avance ; destructibles,
s*il recule ? Uobligation morale d'assurer une juste et pr^lable
indemnity au propri(;taire, d(5possede d'un objet mobilier, ne
( 357 )
retardera pas longtemps la capture inline de ce qui paratt
n^cessaire ou seulement utile au salut de Tarm^e. Les mar-
chandises, les approvisionnements, payds ou non, sont de boune
prise.
Leur destruction immediate, sans acte de consommation, nous
paratt encore justifi^e, si I'ordre qui la present r^pond k un simple
espoir de nuire et d^afTaiblir renneroL
II faut done reconnaitre que si en droit la propri^t^ ennemie
terrestre est inviolable, en fiait nmmunit^ dont elle jouk est
relative et essentiellement contmgente. Assur^ment, cette immu-
nity lui est conc^dde par les usages des peuples civilisds, mais
seulement — et la reserve est iniportante — ^autant qu'elle reste di-
rectement ou indirecteraent en dehors: des nt^cessit^s de la
guerre.
Uindemnitd disparatt done dfes que Tennemi le juge utile, et
cela est dans la logique de cette situation poiticuli^e qui s*appelle
la guerre.
Pourquoi en serait-il autrement sur mer ?
Le navire de commerce, rentr^ dans son pays d'origine,
deviendra un instrument de con^bat, ou de transport, si son
gouvernement le rdquisitionne.
U^quipage qui le compose foumira des recFues pour la marine
de guerre, en cas de besoin.
Enfin, les marcbandises qu'il transporte contribueront au
ravitaillement du pays ou bien lui apporteront le b^ndfice des
gains r^alis^s.
Pourquoi le belKg^rant ne puiserait-il pas dans le fait m^me de
la guerre le droit de priver TEtat ennemi de tous ces avantages ?
Si la capture d'un navire de commerce cause directement et
d'abord un prejudice k ses propridtaires et k ses chargeurs, I'Etat
auquel il appartient e» rcssent le contre-coup d'une fa^on certaine
et indiscutable, et cela suffit k expiiquer comment la saisie de
nombreux navires de commerce pcut devenir la source et Tocca-
sion, dans certaines circonstances, d'ua d<^sastre v^ritablement
national
Ces seules considc^ratioos justifient, nous semble-t-U, d'une
s
( aS8 )
fa^on p^remptoire, la tWorie qui n'accepte pas Piramunit^ absolue
de la propri^t^ maritime priv^c.
VII.
Des exemplcs r^nts, emprantds h la guerre hispano-am^ri-
caine, vont d'aiileurs ^clairer la port^e r^lle des consid^radous qui
prdcfedent.
L'^tude de I'histoire prdsente quelquefois des contrastes assez
piquants.
Les deux Etats firent aussitot connattre la fa9on dont ils
entendaient traiter la propri^td priv^e sur mer, pendant les
hostilit^s.
L'Espagne avait jadis refus^ d'adh^rer k la Declaration de
Paris du i6 Avril 1856, parceque les quatre articles qui le com-
posaient formaient un tout indivisible et ne pouvaient donner lieu
k un consentement partiel. Le Gouvemement espagnol avait
alors estim^e qu'il ^tait contraire h, ses intdr^ts de renoncer au
droit d'armer en course et de d^livrer des lettres de marque.
En 1898, son opinion sur cette question n'^tait pas modifi^.
Aussi la Gazette de Madrid du 24 Avril T898 publiait un d^cret
du Gouvemement espagnol, relatif k la declaration de guerre avec
les Etats-Unis, et annongait en outre que des lettres de marque
seraient ddlivr^es sous certaines conditions.
Les trois demiers articles de la Declaration de Paris devaient
6tre observes, et en m^me temps que le Gouvemement espagnol
donnait une definition de la contrebande de guerre, il prescrivait
des mesures de rigueur h regard de tous etrangers, autres que les
Americains, qui prendraient part h. la guerre.
En fait, eu egard k la duree trbs courte des hostilites, nous ne.
croyons pas que des corsaires espagnols aient eu le temps de
s'armer en guerre et de courir sus aux navires de la marine
marchande des Etats-Unis. Mais quant h, nous, nous ne saurions
blimer, en principe, le gouvemement espagnol, d'avoir admis et
favorise la creation d'une marine de corsaires, puisque tel lui
paraissait 6tre Finter^t de TEtat; cette conception est facile k
( 259 )
comprendre si on compare les forces maritimes et commerciales
de chaque pays.
Que firent les Etats-Unis en 1856? lis avaient refus^
d'adhdrer k la Declaration de Paris, sous pr^texte que cet acte ne
garantissait pas, en cas de guerre maritime, rimmunit^ de la pro-
priety priv^e.
Or, le 26 Avril 1898, le Pi^sident McKinley, dans une
proclamation au peuple des Etats-Unis, d^clarait: — i® Que la
guerre existait avec TEspagne, depuis et y compris le 21 Avril ;
en m^me temps, 2"^ et, sous quelques reserves, examinees plus
loin, que les navires marchands espagnols pouvaient 6tre captures
et saisis en tous lieux, sauf dans les eaux neutres, par la Marine
de TEtat
Les Etats-Unis abandonnaient done leur doctrine de 1856,
simplement parcequ'ils y ^taient contraints par leur int^r^t et les
circonstances sp^ciales de la guerre entreprise. lis croyaient
ainsi porter un coup d^cisif k un adversaire, qui depuis longtemps
se d^battait sous le poids de difficultds dconomiques et financibres
trfes lourdes. De plus, peut-toe se laissaient-ils entrainer k user
jusqu'k un certain degr^ (puisqu'ils n'autorisaient pas les corsaires)
de mesures de repr^sailles.
Ainsiy au moment critique, s'^vanouissaient chez les deux
adversaires, les theories humanitaires et les principes abstraits;
seules subsistaient de simples appreciations d'int^r^t La vieille
maxime des Douze Tables, ''le salut de TEtat 6ng6 en loi
supreme," est et sera toujours la veritable raison d'etre des mesures
k prendre en temps de guerre.
VIIL
La question de Timmunite de la propriete privee, en cas de
guerre maritime, n'est done pas susceptible d'etre resolue, d priori,
pendant le temps de paix.
Dans chaque guerre future, les differents gouvemements
agiront sous leur responsabilite, au mieux de ce qu'ils croiront
Stre rinter^t immediat de leur pays.
s 2
( 26o )
Puisque cc sujet, k notre avis, ne pourrait faire Tobjet de
trait^s intemationaux, qu'il nous soit permis d'indiquer en quel*
ques mots, en nous pla9ant au point de vue exclusivement fran9ais,
la conduite que dans I'^tat actuel de I'Europe, le Gouvernement
devrait adopter en cas de conflit
Nous faisons abstraction de cette grande puissance militaire et
maritime qu'est devenue I'Am^rique du Nord depuis la guerre
espagnole ; les points de contact, partant de conflit, sont en effet
peu nombreux avec la France. S'il est toujours ais^ de concevoir
et m^me de signaler des diflftcult^s possibles, il semble toutefois,
qu'avec un peu de bonne volont^, la diplomatic sufiira ^ les
^soudre, sans qu'il soit ndcessaire de faire mtervenir les escadres.
La France, au contraire, pent redouter une guerre dans
laquelle figureraient soit une ou plusieurs puissances continentales,
soit une puissance maritime, telle que FAn^leterre.
£n cas de guerre contre TAllemagne seule ou coalisde avec
des puissances continentales, il nous semble, pour le moment, que
rint^r^t des bellig^rants serait de se montrer txhs larges et fort
toldrants k Tdgard de la propri^td priv^e sur men II est Evident
que le sort de la guerre se jouerait en Champagne, au pied des
Alpes ou sur le Rhin, et non pas dans la mer du Nord ou sur la
M^diterran^e. Les operations d'escadre auraient, certes, leur
importance ; il n'en serait pas de m^me de la capture de bitiments
de conmierce, fussent-elles nombreuses.
En effet, sauf dans des hypotheses exceptionnelles, les belli-
g6'ants ne s*affameraient pas par ces prises et si, pendant la
guerre, leur vie dconomique dtait profond^ment troublde, la cause
en r&iderait dans Tappel de tous les jeunes gens sous les drapeaux
et non pas dans un arr^t de la navigation, que celui-ci soit plus
ou moins complet.
Notre solution changera, si des circonstances malheureuses
amenaient un conflit entre la Grande-Bretagne et la France.
Pour TAngleterre, en effet, la liberty du commerce des mers
est une question vitale. Uhistoire toute cntifere dc ce peuple
affirme et ddmontre cette v^rit^. II est inutile d'insister, car les
Anglais sont les premiers k en reconnaitre I'exactitude.
( '6x )
Dans le numero du Nindemth Century de f^vrier 1896
(Wilson : "The protection of our commerce in war," pg. 219)
on lisait ceci :
"L*air qu'ils respirent n'est pis plus ndcessaire aux 6tres
humains, que ne Test pour TAngleterre le passage libre et ininter-
rompu de ses vaisseaux sur les mers."
Voilk qui est franc et vrai.
Remarquons au surplus — cela un peu approximativement —
qu'en 1803, TAngleterre iraportait par an et par t^te d'habitant a
livres de bl^; et qu'en 1899 ces quantitds se sont dev^es \ 470
livres. UAngleterre, chacun le salt, pratique la reexportation.
En 1803, le tonnage de la marine marchande anglaise s'devait
^ 2 millions, et son commerce ext^rieur k 62 millions de tonnes ;
aujourd'hui, le tonnage de sa marine marchande est de 10 millions,
son commerce exterieur de i milliard cent millions ; le drapeau
de la Grande-Bretagne flotte sur 20,000 navires marchands,
Ces chiffres montrent la prise que le commerce anglais ofTrirait
aux coups de son adversaire, en cas de guerre. C'est done Ik
qu'il faudrait frapper pour atteindre Tennemi. Cette prosp^rit^,
epanouie et dispersde, rendrait la t4che relativement facile ; en
tons cas, elle permettrait de I'entreprendre avec des chances assez
s^rieuses de succ^
Aussi, comprenons-nous les paroles prononc^es par Sir Michael
Hicks-Beach, Chancelier de I'Echiquier, le 21 avril 1898, au cours
de Tcxpos^ du Budget : —
" L'Angleterre d^pense pour sa Marine et pour son Arm^e
63,500,000/. alors que la France n*en d^pense que 36,387,000/.,
TAllemagne 35,226,000/. Mais TEmpire Britannique a k d^fendre
365 millions d'hommes r^pandus sur tons les points du globe,
c'est-k-dire 80 millions de plus que la France, I'Allemagne et la
Russie ensemble. On ne pent pas dire que les d^penses de
TAngleterre soient trop considerables, quand on songe aux grands
int^rfits qu'elle a k d^fendre. Le tonnage net de la marine mar-
chande est trois fois plus grand que celui de la France, de TAlle-
( 262 )
magne et de la Russie r^unies et son commerce maritime est deux
fois plus graiide que celui de ces trois puissances ensemble. II
doit s'accroftre encore."
Les paroles du Chancelier de TEchiquier ne pouvaient qu*^tre
approuvees en Angleterre et Font dt^, car une conscience claire
des n^cessit^s incombant h son pays les inspirait L'Angleterre
est grande, puissante et prospbre. Elle doit cette heureuse fortune
k son commerce international et par suite k sa marine marchande.
II faut done qu'elle la protege.
Mais, aussi, en cas de guerre, Tennemi temporaire de T Angle-
terre doit-il e^sayer de tarir la source de cette prospdritd C'est
sur les diffidrentes mers du globe quHl faut porter les coups. Leur
effet se fera sentir directement et imm^diatement au cceur du
pays. Le but apparatt avec nettet^ et c*est le seul. S*il est
atteint, le r^sultat est certain. Dans ces conditions, nous croyons
que la France, sans commettre la plus lourde des erreurs. ne saurait
s'engager h. respecter, dans Fhypothfese malhcureuse que nous
^tudions, la propridt^ priv^e sur mer de son adversaire eventueL
Sans doute, la France, elle aussi, a une Marine marchande de
quelque importance. Mais la prise qu'elle ofTre aux coups de
Tennemi, ne saurait se comparer h, celle de TAngleterre. La
marine de guerre de celle-ci est plus forte, de m^me aussi ses
croiseurs. Mais les navires de TEtat, si nombreux qu'on veuille
bien les supposer, ne peuvent pas exercer une surveillance complete
sur tons les points des mers oli s'aventure le navire de commerce.
Ce dernier reste done toujours h. la merci du croiseur qui le
guette, et qui le coulera, si la capture risquait de ne pas dtre
definitive. La Jurisprudence du Conseil d'Etat reconnait aux
navires de guerre fran9ais le droit de dire sombrer un navire
ennemi, m^me charg^ de marciiandises neutres, si Tofficier de TEtat
juge cet acte n^cessaire et s'il a des raisons s^rieuses de croire
que la capture de ce navire est susceptible de lui ^chapper.^
» Voir arr^t du 21 mai 1872, D. 72-3-94, cite et discut^ par M. Thomas
Barclay, Membre de Tlnstitut de Droit International, dans une remarquable
brochure sur I'Immunite de la propriete privee sur mer, presentee jl la
Bufialo Conference, 1S99.
( 263 )
Enfin, la situation gtographique des deux Etata indique
clairement que les conditions de resistance pour une guerre de
quelque dur^e, ne seraient pas les m£mes.
La mer ferm^, pour TAngleterre, produit presque ndcessaire-
ment Tandmie, Tarrdt des approvisionnements de la vie sociale,
peut-6tre la famine est-elle ^ redouter.
Voil^ des facteurs importants en faveur des adversaires de
TAngleterre. Qu'ils ne les dddaignent pas et que, dans le temps
de paixy ils s'appliquent k les bien connattre, k en mesurer
exactement la port^, pour en profiter plus tard, si malheureuse-
ment les circonstances Texigeaient
La mer fermde, pour la France, n'entrainerait certes pas des
consequences aussi funestes. Assur^ment, mines et faillites
individuelles s'accumuleraient ; il ne nous semble pas toutefois
que le pays doive £tre touch^ dans ses forces vives.
La France, pour son alimentation, peut, dans les ann^es de
r^coltes moyennes, vivre sur son propre maiche; les voies de
terre lui resteraient ouvertes et elle s'approvisionnerait en cas de
necessity chez les autres peuples de TEurope.
Done, d'un cdt^, des coups probablement d^cisifs port^s par
k France, si celle-ci avait la sagesse, au prix de lourds sacrifices,
il ^ yrai, de ddvelopper un systbme de crobeurs uniquement
destine^lt traquer les navires de commerce et assez rapides pour
toe en mesure de refuser tout combat De I'autre, des blessures
sensibles inflig^es k la France, mais qui ne sauraient la r^duire k
mercL - , «f
II ne faut pas oublier qu'&^si^ns les guerres pass^es, entre la
France et TAngleterre au XVIII« et au XIX« si&cle, cette demi&re
nation eut toujours Falliance et la cooperation effective d'lme
puissance continentale. Or pour lutter avec succfes, dans les
conditions que nous venous de determiner, il nous paratt essentiel
que la lutte soit circonscrite entre les deux pays. Autrement, la
France, absorbee par une guerre continentale, ne pourrait faire
qu'un effort restreint en faveur de sa marine, et la mer resterait
ainsi ouverte au commerce anglais.
£t ce sont Ik des verites qu'on ne saurait trop repeter, ni trop
( 264 )
vulgariser. Uesprit des masses y paratt quelque peu rebelle. La
paix en depend cependant ; et en cas de guerre, le siicc^s.
Nous avouons m^me que nous serions heureux de voir le
gouvernement fran^ais ddnoncer, si cela est possible, la Declara-
tion de Paris, pour recouvrer sa liberty d'action en ce qui concerne
la course. Sans doute, les corsaires commettent des exc^s ; en fait,
lis ^chappent presque k toute surveillance et ils peuvent susciter
de sdrieuses difficultes avec des dtats neutres. Mais TEtat qui
d^livrera des lettres de marque, ^dictera en m^me temps des
regies draconiennes contre le corsaire qui outrepasserait les
licences concdd^es. La surveillance, pour difficile qu'elle fdt, ne
serait pas impossible, puisque le capturd peut toujours produire
ses reclamations devant les tribunaux comp^tents de la nation k
laquelle appartient le capteur. En tous cas, il convient de passer
sur tous ces inconv^nients en songeant au mal que des corsaires
nombreux et entreprenants peuvent causer au commerce ennemi.
Nous croyons d'ailleurs qu*en Angleterre, des hommes d'Etat,
conscients du danger qui menace la marine marchande, par suite
des difficultds que prdsenterait sa protection, consid^rent la
Declaration de Paris comme nuisible aux int^r^ts anglais, et
demandent sa ddnonciation, ce qui permettrait II TAngletcrre
d*armer des corsaires croiseurs, pour son propre compte.
IX.
Quoiqu'il en soit de cette question subsidiaire de la course, nous
pouvons reconnattre que la tendance des Etats maritimes ne les
porte pas h, conceder I'immunite k la propriety privde sur men
Nous trouvons une preuve de cette assertion dans Torganisation
des Marines auxiliaires.
A cote de la Marine de TEtat, proprement dite, existent des
bdtiments de la marine marchande, soumis k certaines regies, et
destines, en cas de conflit, k prendre part aux operations de
la guerre.
Pour la Prusse, par exemple, un decret du 24 juillet 1870 a
organise la Marine auxiliaire.
( «65 )
Les propri^iaires de ccs navires touchcnt des primes ddtcr-
minees ; ils ont toute liberty pour recruter leurs Equipages, mais
les marins engages font panic de la marine fi^ddrale. Ils observent
certains rfeglements, prdtent serment, et portent un uniforme.
La flotte volontaire Russe est n^e des dvbnements de la guerre
de 1877-1878. EUe leur a surv^cu. Les bitiments appartien-
nent k une association priv^e, mais leurs Equipages re^oivent une
instruction de TEtat
Quant h. leur r61e, il consisle k servir de transports pour les
troupes de T Empire.
L'Angleterre, avec raison, n'a point n^gligd ce moyen de
combat, et a organist des croiseurs auxiliaires. L'Etat a pass^ des
traitds avec les grandes Compagnies de Navigation anglaises et
en ^change de subventions, s'est r^servd le droit d'acqu^rir k sa
volont^ certains navires rapides. Ceux-ci, d'ailleurs, doivent 6tre
construits sur des plans approuv^s par TAmirautd Quant aux
Equipages, la moitid au moins est compos^e d'hommes appartenant
k la reserve de la Marine Royale.
La France ne nous paralt pas avoir pouss^ Torganisation de
ses forces suppl^mentaires aussi loin que cela eut 4t6 desirable.
De simples conventions ont 6i6 sign^es seulement avec certaines
Compagnies, charg^es de services postaux. Les navires de ces
Compagnies sont commandos par des Ofiiciers de la Marine de
TEtat, et en cas de guerre .ces navires seraient incorpor^s.
Or, il nous semble que, m^me en r^servant la question de la
course, T^tat aurait tout int^rdt k enlrer plus largement dans cette
voie, et k s'inspirer du systfeme anglais. La nation y trouverait,
au jour d'un conflit, une reserve de croiseurs rapides. lis seraient
d'un utile secours pour attaquer le commerce ennemi et le
paralyser.
Toutefois, quand nous parlons de pousser la guerre avec
rigueur, pour en abre'ger la durde et soumettre I'ennemi, nous
n'entendons pas prdconiser un systeme de luttes sauvages qui,
( 266 )
tout en causant des mines, n'exercent pas en riBliti une influence
s^rieuse sur Tissue de la guerre.
Aussiy avouons-nous ne pas comprendre Tavantage qu'un
ennemi pent retirer k bombarder ou k briiler une ville ouverte.
Sans doute, Toutillage commercial de ce port est endommag^,
sinon d^truit. Mais Taction morale ou mat^rielle produite par
un semblable proc^d^ sera, nous semble-t-il, des plus m^iocres,
sur Tensemble du pays, et partant sur la fin des hostilitds.
Une grande nation ne saurait 6tre atteinte dans ses parties
essentielles par Tincendie partiel de ses ports marchands. Pen-
dant la guerre, ces ports, ^tant plus ou moins paralyses par les
operations des bellig^rants, ne remplissent plus leur fonclion
exclusivement commerciale que d'une fagon restreinte.
Aprbs la guerre, les parties d^truites sont reconstruites dans un
laps de temps g^ndralement fort court. Les capitaux nationaux
ou Strangers trouvent des occasions excellentes et r^un^ratrices
de s'employen Les mines disparaissent, une cit^ nouvelle surgit.
Seules demeurent les haines que suscitent les actes de destmction
inutile. £lles forment un obstacle k la reprise sincbre de rapports
cordiaux entre les anciens belligdrants apr^s la paix sign^e et
ainsi se prolongent les effets d^sastreux de la guerre.
Sans doute, en vertu de la thdorie que nous avons soutenue
dans les lignes qui pr^c^dent, nous ne saurions engager les Etats
k se Her par des conventions aux termes desquels ils promettraient
de respecter, dans ious les cas^ les villes ouvertes.
Que chacun, sous sa responsabilit^, conserve sa liberty d'action,
mais nous pensons que TEtat bellig^rant agirait sagement, en
donnant, dans ce sens, des instmctions aux officiers de sa propre
marine militaire, sauf k laisser k ceux-ci une tr^s large faculty
d'appr^ciation.
Dans cet ordre d'iddes, malgrd la n^essit^ pour TEtat de
triompher par tous les moyens, ce qui est le but final de la guerre,
nous estimons qu'un pays civilisd ne doit pas se permettre
d'attaquer le commerce ennemi avant d'avoir averti celui-ci de
Tdtat de guerre et de lui avoir imparti un ddai moral de pr^vis,
quelque court qu'on le suppose. II y a Ik une question de bonne
( *67 )
foi et de respect de la parole donn^e pendant le temps de la
paix.
Aucun obstacle n'apparatt donc» dans Tordre moral, k ce que
des mesures loyales soient appliqu^ de part et d'autre. Uint^r^t
est ici d'accord avec la conscience.
Sous ce rapport, un progr^s sensible a 6t6 r^alisd au cours du
siecle qui s'ach^ve.
Dans le sifecle pr&^dent, et pendant Ics guerres de TEmpire,
avant notification pr<falable d'une d^laration de guerre, avant
m^me que V^tat de guerre ait 6t6 constat^, les futurs Etats belli-
g^rants commen9aient par mettre Tembargo sur les navires
ennemis, entr^s dans leurs ports respectifs sur la foi des trait^s,
Les Etats usaient aussi de la force, mais ils commettaient un acte
de d^loyaut^ fligrante.
Le XIX* siecle a heureusement modifi^ ces traditions veritable-
ment immorales. C'est ainsi que lors de la guerre de Crimde, en
1854, FAngleterre s'est honorde en accordant aux navires russes
un d^lai de six semaines pour quitter les ports anglais.
En 1870, le Gouvemement fran^ais a donnd trente jours de
r^pit aux navires de commerce allemands; en 1897, au moment
de la guerre gr^co-turque, de part et d'autre, on observa un d^lai
de qumze jours.
Enfin, en 1898, les Etats-Unis ont pris des mesures trbs larges
vis-k-vis de leurs adversaires, pour permettre ^ ceux-ci de parer
aux effets inattendus d'une declaration de guene soudaine. La
Proclamation du President de la R^publique, en date du 26 avril
1898, avait declare, on ne Ta pas oubli^, que la propri^td privde
etait de bonne prise sur mer. Mais les articles 4 et 5 de cette
Proclamation ddcidaient :
Art. 4. "Les navires marchands espagnok se tronvant dans on part ou
dans nne locality des Etats-Unis auront jusqu'au a I mai 1898, inclu, pour
chaiger leurs cargaisons et pour quitter ces ports ou localites ; ces navires
marchands espagnols, s'ils sont rencontres sur mer par un navire des Etats-
Unis, pcuveni Hre aatorises k continuer leur voyage, si apris examen de leurs
papiers, il apparaft que leur cargaison a et^ prise k bord avant rexpiraiion
du delai susdit. 11 est entendu qu*aucune des dispositions du pr^nt acte ne
s*appliquera aux navires espagnols ayant k bord un officier an service de
Tennemi sur tcrre ou sur mer ou du charbon (sauf ce qui i>eut 6tre necessaire
( 268 )
pour continuer son vo3rage) ou tout autre o1>jet prohibe ou de contrebande
de guerre ou des dep€ches provenant ou k destination du gouvememcDt
espagnol.'*
Art 5. "Tout navire marchand espagnol, qui avaot Ic 26 ayril 1898 aura
fait route d'un port etranger vers un port ou une localite des Etats-Unis,
pourra entrer dans le susdit port ou localite, debarquer sa cargaison ct
ensuite quitter cet endroit sans avoir k craindre d'etre mo'este, et ce narire,
s'il est rencontre sur mer par un navire des Etats-Unis, pourra continuer son
voyage vers tout port quelconque non bloque."
La simple lecture de cette proclamation montre de quel
sentiment dev^ de courtoisie Internationale elle s'inspirait; elle
honore le gouvemement qui en a dictd la formule.
Cette proclamation fut d'ailleurs appliqude avec bonne foi,
par les tribunaux am^ricains, saisis des questions litigieuses que
soulevaient certaines prises effectu^es sur Tennemi.
Ainsi, k titre d'exemple, deux navires, charges de coton, le
Catilina et le Miguel J over, quitt^rent la Nouvelle-Orleans le
21 avril 1898. lis firent route pour I'Europe, mais furent
captures le 24 avril. Aprhs procfes port^s devant les tribunaux
amdricains, tous deux furent relich^s.
Nous souhaitons que les Etats civilises considferent comme
une question d'honneur national, de pers^v^rer dans ces pratiques.
Chaque homme se doit k sa signature. Pourquoi en serait-il
autrement quand il s*agit d'un Etat ?
Concluons done, et rdsumons cette dtude sur une question
qui int^resse k un si haut point notre pays et les autres Etats,
ses voisins.
XI.
La guerre, quelque legitimes ou coupables que soient ses
causes, est avant tout un dtat de /ait et non de droU ; dfes lors,
elle se resume dans Texercice de la force mat^rielle. Nous
sommes done consequents avec cette conception en nous decla-
rant hostile k toute convention susceptible de diminuer ou de
limiter les effets de cette force.
Une Convention suppose Tobservation re'ciproque de rapports
( a69 )
de droit Or, tous les rapports de cette nature sont rompus, sous
le rdgimc de Te'tat de guerre.
Si done, il ne xeste que le recours k la violence pour assurer
le succ^s de la guerre, TEtat qui en a assum<f la responsabilitd ne
doit s*inspirer que de son int^r6t pour la direction g^ndrale qu'il
entend donner k ses op<frations.
Uintdr^t, comme r^gle directrice ; la violence, comme moyen
d'ex^ution, voilk malheureusement, mais certainement, la philo-
Sophie demibre de la guerre. £t cette philosophic n*est pas un
produit bizarre ou contestable de I'esprit, elle r^sulte de la nature
mSme des choses.
£n particulier, s*agit-il de la propridtd privde sur mer ?
Que les bellig^rants ne s*inspirent que de Tint^rSt du moment ;
qu'ils la d^truisent ou la respectent suivant ce que leur conseillera
cet int^r^t
Chacun agira sous sa responsabilit^ et supportera les con-
sequences d'une appreciation erron^e de son veritable int^rfit.
La question n'est done pas susceptible de faire Tobjet d'une
entente Internationale. Les Etats, en conservant leur liberte
d'action, se pr^parent ainsi pendant la paix et se mettent en
mesure de faire face aux eventualit^s les plus rigoureuses : ils
evitent des rd veils terribles quand ils ne se sont pas laiss^ bercer
par des croyances optimistes ou amolir par la sdcurite trompeuse
d'un traitd Faible rempart pour une nation, d'autant plus
dangereux qu'il repr^sente une apparence actuelle k laquelle ne
correspondra peut-^tre pas la r^alit^ de demain.
A cette doctrine rigoureuse, que des esprits g^n^reux traiteront
de cruelle, nous apportons deux correctifs motives Tun par Tint^r^t
bien entendu de TEtat, Tautre par le plus grand respect que I'Etat
doit tou jours k sa parole, quand son existence mime tiest pas
enjeu.
D'une part, pas de violences inutiles, et au nombre de celles-
ci, nous parait ^tre le bombardement des villes ouvertes, sans
autre raison que Tincendie et la destruction.
Toutefois, il n*y a Ik qu'une indication, nous ne saurions bldmer
un Etat qui agirait autrement s'il avait cm sincbrement et loyale-
( 270 )
ment que son intdrfit lui commandait d'imposer silence aux senti-
ments ordinaires de Thumanit^.
D'autre part, nous souhaitons que les Declarations de Guerre
et les d^ais accord^s aux navires de commerce passent d^finitive-
ment dans les usages des Etats civilises.
Aprfes la guerre, les pratiques g^n^reuses du bellig^rant sont
appr^ci^s de leurs anciens adversaires ; elles contribuent h, Tapaise-
ment des csprits et k Toubli des haines passdes.
Au point de vue fran9ais, les circonstances pr^sentes nous
imposaient le devoir de ne pas traiter cette question dans un
esprit qui aurait sembl^ hostile h. d'autres pays, que nous admirons,
et avec lesquels nous entretenons des relations amicales ; nous y
avons fait tous nos efforts, mais nous d^sirons que notre nation
envisage sainement la situation pr&ente, qu'elle se ddfie d'un
ide'alisme un peu vague et trop g^n^reux, et qu'elle se mette
couragcusement en mesure et de ddfendre son propre commerce
et d'attaquer celui de ses adversaires.
La France aura toujours la ressource de ne pas user de ces
moyens de luttc, si son int&6t du moment le permet.^
Sir Walter Phillimore then read the following paper :
"Is IT DESIRABLE TO FrEE PRIVATE PROPERTY AT SeA
FROM Capture in Time of War?"
It has been sometimes supposed that the Declaration of Paris
in 1856 represented a tendency of modem statesmen in the
direction of limiting the operations of war, and of exempting the
private property of the subjects of belligerent states at war from
confiscation. I think this is a mistake. We must remember
' Nous nous sommes inspire pour ecrire cet article du Dalloz, J. G.,
Supplement, V* Droit des Gens ; de la Revue de Droit international priv^,
dirigee par M. Clunet, Avocat k. la Cour d*Appel de Paris ; de la brochure de
M. Th. Barclay, Avocat, Inc. cit. ; et d'un livre recent, fort remarquable :
" Le droit de la Guerre Maritime d'apr^s les doctrines aaglaises contem-
poraines,'' par Charles Dupuis, Maftre de Conferences k T^cole des Sciences
politiques (Pcdone, Editeur, 1899 » Paris).
( 271 )
that the declaration came at the close of a war in which France
and England had with other states been engaged as allies against
Russia, and that (though the jurisprudence is as to France a
little uncertain) the French rule was to treat the private merchant
vessel at sea as giving its quality to the cargo : ** Neutral ships,
neutral goods; enemy's ships, enemy's goods," while the English
rule was to separate ship and cargo, to release that which was
neutral and to condemn that which belonged to the enemy ; and
further that the Allies, not wishing to have different rules enforced
in their respective prize courts, had each abandoned during the
war that cause of condemnation which was not recognised by the
other ally.
The declaration made the temporary practice for the two
Allies permanent for them and for the other states which
adhered to it
Neither state, however, intended by this declaration to make
any step towards the doctrine that a citizen may have the rights
of peace while his country is at war.
France gave up no right to seize enemy's private property;
she only gave up the right to treat a neutral who had put his
cargo on an enemy's ship 3s/ro tanto an enemy.
England no doubt gave up the right to seize certain property
of the enemy ; but she did not do it for the sake of the enemy,
but on account of the neutral
The practice of bringing neutral ships by force away from their
voyage into English ports for investigation, perhaps unlading the
cargo, and then if it were found hostile sending the ship away
empty, sometimes with only a pro rata freight, was so injurious
to neutrals and so exasperating, that though logically defensible,
it might well be given up on the ground of policy.
I am aware that great English publicists, philosophers, and
statesmen have taken a different view as to the expediency of
giving up this practice; but the authority of Dr. Lushington,
judge of the High Court of Admiralty, as to the hardships
endured by neutral shipowners during the War from 1796 to
18x4, v^ rightly quoted and relied upon in the English debates
( 272 )
upon the Declaration of Paris; and there were certainly con-
siderations of high policy in favour of the change.
Be that as it may, it was upon the ground of policy and with
a view of conciliating the neutral that the changes were made
both by France and England. The removal of the hostile taint
from neutral goods found in the enemy's ship, and the affording
of comparative immunity to the neutral ship, even if it carried
enemy's goods, were not concessions to a supposed idea of
humanity or intentional reductions of the evils of war.
No doubt the temporary practice of the Allies was at the
time accepted by the United States as a step towards the total
immunity of private property, a doctrine for which the United
States then and previously contended, though their practice later
was, as I shall show, different ; and no doubt English shipowners
and others have tried to use the Declaration of Paris as a
stepping-stone towards total immunity.
But each time that the attempt has been made, the answer of
statesmen has been the same.
In 1862, during the American War of Secession, and in 1866,
this question was raised in the House of Commons.^ I quote
extracts from two of the speeches in 1862. The first speaker
is the Right Honourable Sir George Cornewall Lewis, known
as a writer and philosopher as well as a statesman. He
" When you conquer a country you conquer its government, and when
you have conquered its government you have conquered that engine by which
the country can be plundered. . . . With regard to the sea, there is no
similar engine. . . . With regard to the question of assimilating land
warfare and sea warfare, the real assimilation was effected by the Declaration
of Paris, when this country surrendered the right of private warfare, when this
country abolished privateering. There is the real analogy between land and
sea warfare. . . . We do not permit a single private individual to go out
on a plundering expedition on land — we confine the contest to the armies of
the hostile State— at the same time we do not restrain that army seizing private
property whenever such seizures may be necessary."
» Hansard, 3rd Series; Vol. 165, pp. 13S9-I39I| '599-»7o6; Vol. 181
pp. 1407- 1480. See also Vol. 146, pp. 1 490-1 491.
( 273 )
It appeared in this debate that Franklin's treaty of 1785,
between the United States and Prussia, exempting private
property from capture, was not renewed in 1796.
The other speech is that of the Lord Advocate : —
" It WIS said that private property was sacred in land warfare. No
assertion could be more contrary to principle or more at Tariance with constant
and inveterate practice. The abstract rule was that we were entitled in war
to take an enemy's property wherever we fonnd it."
In 1867, the present Prime Minister, Lord Salisbury, then
Lord Cranbome, said : —
"Gentlemen have denied that Sherman destroyed private property. Thnt
he did so was perfectly notorious. It was the avowed object of his march to
exhaust the enemy by destroying the sources of their provisions and so
preventing the Confederate army from meeting a Federal army in the field."
In 1867, the philosopher whose reputation has been greater in
Fiance even than in his own country, Mr. John Stuart Mill,
actually went so far as to move a resolution against the
Declaration of Paris, and in doing so gave utterance to the
following statement of doctrine on the whole question of the
immunity of private property.*
" I maintain it to be for the general interest of the world, if there is to be
fighting, that every power should fight with its natural weapons and with
its best strength, that so there may be the greatest possible division of force,
snd no one power may be able to bestride the world or any two or three
powers to divide it among them. ... A strange gsun to humanity if the
merchants, manufacturers, and agriculturists of the world lost nothing by
a state of war and had no pecuniary interest in preventing it except in the
increase of their taxes, a motive wnich never yet kept a prosperous people
oat of war. . . . How war can be humanized by shooting at men's bodies
instead of taking iheir property surprises me."
With him agreed Lord Chancellor Selbome, then Sir K.
Palmer : —
" It would sap the very life-blood of the nation if we were for a moment to
admit that the trade of the country could remain at peace while the nation
itself was involved in hostilities."
I must now ask leave to quote two passages from my father's
" Commentaries on International Law." When discussing the
' Hansard, 3rd Series, Vol. 189, pp. 876-894.
T
( »74 )
expediency or otherwise of giving immunity to private property
at sea, he says : —
*< In the first place the will of the subject is bound up, so far as International
relations are coDcemed, in the will of his Government. There cannot be
pro parte pax pro parti bdlum^ commerce at peace, armies at war. Such a
confusion of relations is not only unpatriotic and full of evils, but probably
would be found after a short time infeasible. In the next place, as the end
of all war is peace, whatever delays the arrival of that chief blessing is evil.
This new system of the Sovereign's war and the subject's peace is really a
device for lengthening war and delaying peace. Many a war, as I have
already observed, has been bi ought to an end by the sufferings and privations
which it forces upon the subjects of the belligerents. Once attempt to take
away this corrective, and, so far as you succeed, you prolong and render
normal this abnormal and terrible mischief."'
Again : —
*• Napoleon the First, in the zenith of his power, . . . never levied more
enormous requisitions upon an invaded territory, upon conquered cities and
ruined peasantry, than Prussia . . • levied upon the peaceful citizens and
peasants of France." •
The State which was the first to advocate as a State the
immunity of capture of private property at sea, was the United
States. In the struggle of the War of Secession, the inhabitants
of the Northern States suffered much by the capture and loss of
their property at sea. What did their Generals and tiieir
Government do on land ? Reference has been already made to
General Sherman's march through Georgia. I go to another
incident Congress passed an Act forfeiting the private property
of rebels — that is of the Secessionists. The Constitution of the
United States apparently forbids the imposition of the penalty of
confiscation as a punishment for rebellion ; and in consequence
the validity of the Act of Congress came under discussion in the
Supreme Court of the United States. The Act was held to be
valid and not unconstitutional ; but why ? Because it was not an
Act for the punishment of citizens, but a lawful application of the
laws of war.
* Phillimore's '* International Law," 3rd ed. Vol. Ill,, p. 36a.
« IHd., p. 365.
( 275 )
Mr. Justice Strong thus delivered the judgment of the
Courts—
'* Of coarse, the power to declare war inrolves the power to prosecute it by
all means and in any manner in which war may be legitimately prosecuted.
It therefore includes the right to seize and confiscate all property of an enemy
and to dispose of it at the will of the captor. This is and always has been an
undoubted belligerent right. If there were any uncertunty respecting the
existence of such a right, it would be set at rest by the express grant of power
to make rules respecting captures on land and water. It is argued that though
there are no express constitutional restrictions upon the power of Congress to
dedaie and prosecute war, or to make rules respecting captures on land and
water, there are restrictions implied in the nature of the powers themselves.
Hence it is said the power to prosecute war is only a power to prosecute it
according to the law of nations, and a power to make rules respecting captures
is a power to make such rules only as are within the laws of nations. Whether
this is so or not we do not care to inquire, for it is not necessary to the present
case. It is sufficient that the right to confiscate the property of all public
enemies is a conceded right Now, what is that right, and why is it allowed ?
It may be remarked that it has no reference whatever to the personal guilt of
the owner of confisa^ted property, and the act of confiscation is not a proceeding
against him. The confiscation is not because of crime, but because of the
relation of the property to the opposing belligerent, a relation in which it has
been brought in consequence of its ownership. It is immaterial to it whether
the owner be an alien or a friend, or even a citizen or subject of the power
that attempts to appropriate the, property.*'
Further on ^ : —
" But even in foreign wars persons may be enemies who are not inhabitants
of the enemy's territory. The laws of nations nowhere declare the contrary.
And it would be strange if they did, for those not inhabitants of a foreign
State may be more potent and dangerous foes than if they were actually
residents of that State. By uniting themselves to the cause of a foreign
enemy they cast in their lot with his, and they cannot be permitted to claim
exemptions which the subjects of the enemy do not possess. Depriving them
of their property is a blow against the hostile power quite as effective, and
tending quite as directly to weaken the belligerent with whom they act, as
wonld be confiscating the property of a non-combatant resident."
In truth, with regard to war there are two principal matters
to which all friends of humanity and we in our Association must
give our attention ; and it may be that what we should desire in
respect of one will to some extent interfere with what we should
desire in respect of the other.
One object is to make war more humane, to diminish the
« Miller f. United States, ii. Wallace's Reports, p. 305.
* Ihid.^ p. 311.
T 2
( 276
sufferings of the combatant and the losses of the private citizen.
No doubt many a citizen is brought to ruin by the confiscation of
his property whether on sea or land. For this reason we should
like to procure the immunity of private property. But a greater
object is to prevent war, and, as a corollary, to bring to a speedy
close any war that does break out.
Experience shows that the fear of loss and the fact of loss are
both powerful to prevent war and to bring about a speedy return
to peace. More lives will be saved, fewer citizens will be maimed,
if private property is seized and destroyed.
One other consideration. It is a great thing to equalize
nations ; or, to put it in another way, to have a condition of
things in which even the most powerful nation must suffer by
going to war. The more vulnerable nations are, the less likely
they are to attack.
If it be said, and some Englishmen will say it, that England's
especial vulnerability lies in the liability to capture of her
property afloat, I answer that it is a very good thing that my
countrymen have this deterrent to prevent them from plunging,
with a light heart, into war.
Except Sweden and Norway, every nation on the Continent
of Europe has known, in turn, within the last loo years, what it
is to have an invading army upon its soil.
Before last year, 1899, and the invasion of Natal, it was
more than a century — in one mode of calculation more than a
century and a-half — since any appreciable portion of territory
owning the British flag had been occupied by an invading army.
And even now the distances are so great that but little of the
misery brought upon the British Colonists in Natal has reached
to the centre of affairs or affected the minds of the governing
classes. If our property afloat was free from capture, with our
islands preserved from invasion, there would be little to bring
home to us the horrors of war. We have no conscription. The
loss would fall only on the professional soldier and his relatives,
or on those who least deserve it, the gallant men who volunteer
for their country.
277 )
Prince Cassano addressed the meeting on the subject in
French :
Messieurs, — Nous avons tous applaudi aux id^es trfes ^lev^s
qui out 6t6 examinees par Sir Walter Philiimore. II est Evident
(}u*il y a beaucoup k faire dans ce qui est expos^, mais je pour-
rais dire que c'est plutot, ou du moins je Tespfere, de la v^ritd
historique.
Dans le temps oh on ne s'occupait pas d'emp^cher la guerre,
il fallait en effet emp^cher la guerre par la guerre; on par con-
sequent plus de personnes ^taient engagdes dans les ennuis de la
guerre, et plus il y avait d'adversaires.
Mais nous avons entendu, le premier jour de notre reunion, des
commentaires sur ce qui s'est pass^ ^ la Haye.
Par consequent, nous avons aujourd'hui des moyens pacifiques
pour emp^cher une guerre et m^me des moyens pour emp^cher
une guerre par le jeu de Tentente qui est suffisant Je crois que
toutes les citations out 6t6 examinees, surtout la citation du livre
tr^ int^ressant de Sir Robert Philiimore, et je pourrais ajouter
m^me d^s k present qu'on peut disposer de moyens plus paci-
fiques pour empScher la guerre que par la guerre.
Par consequent, vouloir engager toute discussion pour diminuer
les ennuis de la guerre, me parait un peu sommaire. Je crois que
d'abord la conference de la Haye nous a absolument encourage, oh
on n'a pas rejet^ cette proposition, mais il a ete dit, au contraire,
que cette question pourrait faire Tobjet d'une conference speciale.
II ne faut pas s'occuper seulement du resultat qui a ete obtenu
centre la propriete privee, appartenant aux citoyens de tous les
pays, mais il y en a un autre. La guerre se declare tr^s vite et
alors les marchandises appartenant k des neutres se trouvent
engages. Je sais qu'en general ces marchandises sont rendues,
mais le temps passe et le retard deteriore ces marchandises.
II ne sera pas inutile d'adopter, il serait m^me absolument utile
et je le recommande k votre appreciation, sinon dans leurs termes
du moins dans leur idee, les resolutions proposees par les membres
americains.
( 278 )
Mr. Angier : Mr. President, — ^With all deference, as a private
shipowner, an English shipowner, I venture to give you a few
of the impressions on this question that have formed themselves
very strongly in my mind, and which, I think, obtain to a very
large extent amongst British shipowners. For many years this
great question has been very vividly brought before their minds .
and they have very closely considered it in all its views. I
believe that by far the majority of them have come to a very
definite conclusion on the point as far as shipping is concerned,
and I believe there is hardly a shipowner who would come out
of a naval war in which England was engaged without more
or less loss; and as the law now stands, and as custom
stands, although they would, in a great many instances profit
by exceptional war rates of freight, of course only a small
minority of them would be able to harvest these great prices.
After thorough examination of the question they approach it from
this point of view : that it seems to them, and I think, too, to
most reasonable men — and the opinions I have heard read this
morning tend the same way — that it is a mistaken and unjustifi-
able course for any country, by contract or otherwise, to minimise
its power of inflicting damage of any and eveiy kind upon an
adversary with whom it is at war. I maintain that that is a
principle which no argument will ever overcome, and the reasoning
in its favour has been forcibly pointed out to us to-day. That
reasoning goes in favour of that principle on the ground of
curtailing and shortening wars, and on the ground of preventing
wars. Upon this point we, as shipowners, and as a class of
the community which is most nearly affected, are, I think, almost
atone.
Turning to another aspect of the case I have formed this
opinion, and I think a great many agree with me, that every
nation when it enters upon a war should, in common justice
and equity, put all its subjects on the same level It would be
a most unjust thing that any one part of the community should
benefit when the whole nation is committed to an act, and it is
right that all parts of the community should become one, just the
( 279 )
same as if it were one man engaged in a contest or undertaking.
They most be made one, and they should be put in such a
position that no one set, no one interest, no one individual* could
be deliberately ruined, while others went untouched On that
ground we distinctly say that every government should practically
give an indemnity both for land and sea property. It is done,
to a great extent, in the case of land property. In every case
the government of a power at war frankly says that it will pay
for what is requisitioned, whether the requisitions are from its own
subjects or, possibly, from its enemies' subjects. That is an
accepted doctrine which is followed in practice. We say naturally,
under those circumstances, there is no other course but for a
government to give us an indemnity for losses at sea. Of course
it would entail a very carefully elaborated set of rules and scales,
but it appears to us the only right way. We are always met,
as Sir Walter Phillimore says, by one answer from our govern-
ments. We have often and often put before them carefully
worked-out sets of rules whereby, at a small cost to a nation,
it might graduaUy accumulate and set apart a fund to meet these
exigencies; but we have always been met by the same answer
of non possumus. The fact is, it is a difficult question, and it is
seldom that you can get a government to take up a question
that does not immediately interest it We have faced thb contin-
gency in another way, viz., by means of a national and mutual
indemnity association, but that is simply a question of figures
to be worked out. But on this point we still maintain that it
b not just that we should be obliged to have recourse to private
effort We stand on the ground, as I said before, that it is the
duty of every government in undertaking war to take care that
it so regulates the position of all its subjects, that neither one
interest nor one society can be damaged irretrievably, while
others come out comparatively scot-free.
Mr. Sinclair Cox: Mr. President and Gentlemen, — I have
very carefully considered the Report presented by the American
Committee, but I venture to suggest that this Conference should
( 28o )
support the conclusion of Sir Walter Phillimore. The propositions
upon which the Report of the American Committee were founded,
and upon which they recommend their resolutions, are — ^as an
illustration, I take that of Mr. Hamilton Fish refening to the
restraining and humanising influence imposed hy modem civiliza-
tion on the art of war, and also the more recent one of
Mr. McKinley refening to the humane and beneficent principle
of the immunity of private property — these propositions, when
met by the position which Sir Walter Phillimore has taken up,
seem to me to fail in effect ; because if one comes to consider the
beneficent trend of modem notions in regard to war, surely that
which throws the whole responsibility upon persons by the
freedom of property from liability is not beneficent and is not
humane.
Now Prince Cassano, if I followed him rightly, referred to the
propositions of the Conference at the Hague, and, as I under-
stood him, he seemed to rely upon those propositions as
preventing warfare in the fiiture or minimising its liability. Well,
that may be so, but this question deals with a state of war when
it exists, and therefore the question whether or not its existence
is likely, seems to me, with all respect, to fall to the ground.
There is one other point that he made, which was this : that it
would be unfair to merchants, because of the rapidity of the
operations of modem warfare. Surely, there again, the answer
is this : that the rapidity with which the operations are conducted
leads to a rapidity of result, and therefore leads directly to peace.
The point which was made by the last speaker in reference
to the immunity of private property by government indeomity,
has to be taken in connection with this : that whenever war is
declared the effect of it upon private property is not limited to
property which is involved in navigation, because everyone knows
that the country is affected throughout, and its general trade and
commerce receive severe blows which cannot be taken into
consideration by any scheme of government indemnity. When
one considers that all connected with the nation should pn>-
portionatcly bear, by what one might call "an equality of
( 2Si )
sacrifice," the burthen of hostile operations, any scheme of
government indemnity would have to be more widely extended
than merely to cover, as he considered^ the property of shipowners
alone.
These conclusions lead me to this : that when war is declared
the real effect is to pit the whole of the resources of one state
against the whole of the resources of another state. If it is not
so, that is to say, supposing a large portion of the resources
of a state is excluded from the operation of hostilities, the result
would simply be that each state would have, in effect, a body
of gladiators, that is to say, whether you regard them as soldiers
or whether you regard them in connection with the Navy, a
body of professional persons paid to fight the battles of the
nation without any regard whatever to the whole mass of the
people of the nation ; and the effect of that would be, of course,
to give a very great advantage to very powerful nations. Sir
Walter Phillimore points out, and I think with telling force, that
it is necessary, in a scheme of international consideration on the
matters of warfare to, as far as possible, equalize states, and
although it may be said that if the whole resources of one state
are, in warfare, pitted against the whole resources of another
state, and therefore the state which has the greater balance of
resources has in that contest the advantage, it must also be
conceded that a state with comparatively small resources is able
(under the system which finds more favour in England) with the
greater opportunity of fair play, to attack the vuhierability of a
state with large resources, that is to say, a country with compara-
tively small commerce is placed upon a comparative equality
as against a powerful nation by the fact that it is able to attack
the whole resources of that powerful nation with little chance
of itself being detrimentally affected to a considerable extent
Therefore I venture to submit to this Conference that what
Sir Walter Phillimore has said in that passage in which he refers
to the necessity for equalizing nations, is something which this
Conference will accept as sufficient to cause it not to accept the
American Resolutions.
( 282 )
Mr. Thomas Barclay, President of the British Chamber of
Commerce (Paris) : Gentlemen, — ^Time presses, and I think we
should know clearly what we are discussing. Certain Resolutions
have been laid before the Conference by the American Com-
mittee, and those Resolutions, if I understand aright, have been
seconded by Prince Cassano. If it is necessary further to second
them, perhaps there will be an opportunity of doing so by some
other American gentleman present For my own part, I wish
to move the adoption of those Resolutions myself, with a
modification. I do not take the same view identically as the
American Committee by any means, and Sir Walter Phillimore
has shewn by his paper that on the English side, probably, the
members of this Association take a diflferent view. The view
that I have taken is contained in the paper which was read at
Buf&.lo, and it is pretty fairly an expression of what we think in
England. There is no objection whatsoever to this question
being brought before a Special Conference — quite the contrary —
as to whether it is a question for municipal law or international
law ; but a Conference held on the subject determining that we
should take the same action in all countries, would come to
exacdy the same result, whatever we call the law under which
it falls. With a view of trying to meet our American friends, and
not pre-judging the question, as has been done in the first
resolution submitted, I would propose the following: "That it
is desirable that the same Rules should, so far as possible, apply
to private property at sea as to private property on land." That
leaves the question entirely open, because, as I contend, there
is no immunity which private property enjoys in warfare on land
known thus far to international law. The necessity of war is the
one great factor in war. The commander uses his discretion to
take or to leave, and it is for the municipal government to
honour the receipts which the enemy has delivered to the private
persons who have been despoiled of their belongings. Therefore
if we try to assimilate private property at sea to private property
on land, it simply means that we try to bring about some system
by which the owner of private property at sea shall not bear the
( a83 )
loss as an individual, but that that loss should be spread over the
community by an indemnity paid out of taxation*
If the Resolution I propose is acceptable to our American
friends, I think it should be quite understood that we do not
mean, by accepting it on the part of Englishmen, that we agree
that there is any immunity in the case of private property on
land. If that first Resolution were accepted, then the second
would have to be modified in the following manner, viz. : " That
this subject can be best considered by a Conference or Congress,*'
instead of, *' That such result can best be obtained." In moving
a Resolution we have not to express a very strong opinion as to
what a Congress is to do. The Congress ought to be called to find
out itself afterwards exactly the line it is to take. The proposals
of the American Committee are before the meeting, and I am
in order in proposing an amendment to their proposals. There-
fore, gentlemen, I submit my amendment to you, and I suppose
now we can take the amendment before we take the Resolutions,
and dispose of it. That amendment is as follows :
''That it is desirable to assimilate so far as possible the
practice as regards private property at sea to that as
regards private property on land in time of war."
''La Conference e'mit le voeu qu'il est desirable d'assimiler
autant que possible la pratique en ce qui conceme la prise
de la propri^td privde sur mer k la prise de la propri^tt^
privde sur terre."
Mr. Barclay continued in French: Je dis qu'il n'y a pas
d'immunit^ de la propridt^ sur terre. Cela n'existe pas. Le
commandant d'une armde, le gdndral, a le droit de mettre la main
sur la propridt^, mais il est une r^gle humanitaire qui veut que
rien ne soit detruit pour le plaisir de ddtruire. Si cela pent lui
6tre utile, il met la main dessus et il donne un re^u, et ce re9u
est une esp^ce de traite sur le gouvemement ennemi et k la fin
de la guerre. chaque spoli^ pr^sente le re^ u et il est indemnisd
Je dis que pour la propri^t^ sur mer ce ne serait pas une
mauvaise chose, au contraire, j'applaudirai, d'indemniser ceux qui
( i84 )
ont 6t6 spolids par les navires ennemis; c'est rassimilation k
rindemnitd sur terre.
Je dis que ^a ne pr^juge rien et que nous ne voulons pas
accepter ce que disent les Am^ricains. Nous disons tout
sitnplement que nous sommes pour Tindemnit^.
Comment proc^der k Tavenir, soit pour droits intemationaux
soit pour les droits privds? Laissons cela k la confi^rence qui
doit se r^unir.
M. Marais : II me semble que la proposition faite par notre
honorable collogue ne doit pas se presenter com me amendement
k la premiere resolution du Comit^ amdricain. II me paratt en
^tre la negation.
La proposition est ainsi congue :
II faut qu*il y ait une modification dans les rbgles actuelles dc
la guerre et cette modification doit avoir cette port^e, qu'on ne
doit pas toucher k la propri^td pacifique et qui ne cause pas de
prejudice.
Uamendement de M. Barclay dit au contraire qu'il y aurait
ensemble entre la propridtd maritime et la propri^t^ terrestre.
Or, quand cette demibre est dans les mains de Tenvahisseur, il
pent en faire ce qu*il lui plait
Par consequent, si vous Tassimilez k la propri^td terrestre
Tamiral ennemi pourra saisir purement et simplement la propri^t^
de son adversaire, ce qui est la negation de la proposition faite
par le Comit^ am^ricain. II y a ainsi deux systbmes en presence
et qui sont contradictoires.
Ou bien la propridt^ privde en mer jouirait d*une indemnity
tandis que la propri^t^ terrestre n'en jouirait pas.
C'est Tun ou Tautre, et je demande qu'il ne se prdsente pas
comme un amendement, ce qui imposerait I'acceptation du
principe amdricain.
Mr. Barclay: Si M. Marais avait lu le texte je crois qu'il
aurait vu qu'il y avait une nuance.
Le texte ecrit dit : (M. Barclay relut le texte de son amende-
ment)
( »8S )
Si on assitnilait les deux, il y aurait one modification ; en ce
moment il n'y a pas de restriction sur mer, mais nous en faisons
sur terre.
Mr. Akgier seconded the amendment #
Mr. J. Parker Kirlin (New York) : Gentlemen, — Although I
was not a member of this Committee, I had an opportunity of
talking with them on the general subject, and I feel sure, if they
were here, that the amendment which has been proposed by Mr.
Barclay would be unacceptable to thenu I think, moreover, that
it is objectionable in itself, on principle. In the first place, it
invites a discussion, which has arisen at the very suggestion of
the amendment, as to what the law is with regard to capture of
private property on land. There is no doubt that, in the abstract,
certainly in times past, international law has justified the seizure
of private property on land, but at the present time I think it
doubtful if any nation should undertake to go about the country
of an enemy despoiling the private property of non-combatants
which was not at all needful to the commander upon grounds of
military necessity. The same reason, indeed, applies to the
immunity of private property at sea as applies to the agreed
immunity, if I may so call it, of private property of non-
combatants on land at the present time. The right to capture
contraband at sea corresponds to the right to take property on
land for military necessities. That right gives the belligerent who
makes the capture, the right to strike the enemy in a vulnerable
place, and often to capture from the enemy appliances of war
which will be useful to him. So on land, in cases of rebellion
especially (of which Sir Walter Phillimore gave us an illustration
this morning from our history), it was found useful to strike at
the material resources of the country which was in rebellion,
which had been occupied by the rebellious forces sustained by
the peculiar kind of property which was made the subject of
condemnation by this Act. Now when you leave out of view the
question of contraband, admitting the right to take contraband
absolutely and completely, and leave out of view, under the law
( i86 )
of land warfare, the right to take property for military necessities,
there is left merely the question whether there is any good reason,
whether there is any moral justification, whether there is any
right of any kind, for a belligerent captor to go about the world
either on land or sea despoiling non-combatants of their property
which is not engaged in the war, which is not used for or against
either party, and which has every right to be left in peaceful
security, as it supposes itself to be. It has been said in the course
of the debate that to allow private property to go free at sea
would be to allow peace to reign in commerce whilst war was
being carried on between the contending forces. Now is that
quite true ? Nobody suggests that either belligerent should give
up the most valuable of the rights of war, that of shutting up the
enemy's commerce by blockade or by visiting and searching his
vessels and taking away any goods which are contraband of war.
The proposition is not to allow the private property of the
belligerents to pass freely from the ports of one nation to the
ports of another nation, because that right would be contrary to
the ordinary laws of war, and if such commerce could possibly
be of any material benefit in time of war, the first step would be
to head it off by blockade. The suggestion made on the other
side is that you should seize this non-combatant property, not
only when it is bound to an enemy's port, but when it may be
bound in some entirely different direction, to some neutral port
or perhaps to some other port of the belligerent of the same
country from which it started, perhaps engaged in the coasting
trade. Now the only grounds which have been suggested as
justifying the seizure in such a case as that — that is, in the case
where commerce should not be interdicted by blockade, and
where the goods are not contraband of war — are two. First, that
you thereby impair the resources of the state whose goods you
capture, and, secondly, that the fear of capture operates in the
first place as a deterrent of war, and later on is a consideration
which tends to hasten the conclusion of peace. Now I venture
to suggest, with all respect to the learned gentleman who has
spoken before, that some consideration of these two propositions
( a87 )
will lead to the conclusion that neither one of them is sufficient to
afford a moral justification for the seizure and confiscation of the
property of non-combatants — property which can in no way assist
the captors in the war in which they are engaged. To take the
first question : How much injury can be done to a great nation
by the capture of a few of its ships, and by the confiscation of a
few cargoes which those ships may be carrying? The number of
persons engaged in the maritime enterprise interrupted by capture
is so grossly disproportionate to the mass of the population, that,
as a material matter, I do not suppose the resources of the nation
would be at all affected. You can affect the resources of commerce
of the nation by blockade, but how much can you affect them by
capture ? At present, the means of affecting it by capture have
been so substantially diminished by the adherence of most nations
to the Declaration of Paris, which requires them to give up
privateering, that as a practical matter, none of the nations which
have adhered to the Declaration of Paris could afford to make
it their business to go about with their ships of war in pursuit of
merchant ships of another nation. Ships of war will find engage-
ment in* more serious business. So it seems to me the Declara-
tion of Paris has been a step in the direction of the general and
complete immunity of all non-combatant property, because those
who have adhered to its doctrines have given up one of the most
powerful weapons by which war can be made on the commerce
of the other belligerent country.
Then you come, in the second place, to the question whether
it is going to deter anybody from making war. That brings us to
the question of insurance. Now we have had, during the last
two years, unhappily, some little experience on this question in
our own country in our war with Spain. My own professional
connection with some of the captures there placed me in a
position to know about the others as well, and I happen to know
that none of the important captures in that war actually affected
the Spaniards. The losses in every important case fell upon
neutrals: the case was the same with the cargoes. Therefore,
so ^ as the deterrent effect is concerned, for any nation which
( 288 )
can insure its ships, that would be very slight. Whether the
exercise of the right to capture would hasten the end of the war,
or not, I also venture to submit, is a very debatable problem.
I think that it may fairly be said, so far as our own experience is
concerned, that the right to capture, and the exercise of that right,
had no influence whatever either upon the war, itself, the incep-
tion of it, nor upon the close of it ; and I think it has been the
experience in most recent wars, that captures have taken place in
the main in the early days of the war, before vessels had an
opportunity of getting themselves away from the theatre of
conflict Therefore, I think, I may submit in conclusion, that
the propositions submitted by my American friends are such as
may fairly commend themselves to the Conference. Keep all
the real efflective means of combating the commerce of your
opponent on the seas by blockade, the right to search or the
capture of contraband, but let the non-combatants go on their
way in peace.
Sir John Bigham : I should like to say a word or two upon
this matter, a matter to which, I confess, I have not myself
given very great personal attention. It appears to me that the
reasoning and the resolution submitted by my friend Sir Walter
Phillimore ought to commend themselves to the Conference. I
cannot myself think that the recommendations of the American
Committee ought to be accepted. I do not propose to give any
reasons in support of the one view or of the other, because those
reasons have been sufficiently expressed by the preceding
speakers ; I desire only to say a word or two with reference to
the somewhat captivating amendment proposed by Mr. Barclay,
because I think that it is so drawn and so put before the meeting as
to be likely to draw away the attention of members from the real
issue. Now one of the main objects of war is to injure the
enemy either in his person or in his property or in his trade;
and if, as Mr. Barclay suggests, the interference with his trade,
which I may say can only take place on the sea — because one
cannot interfere with his trade on the territory of neutrals — if his
( a89 )
trade on the sea is to be interfered with in the way in which
Mr. Barclay suggests, it ought to be, if at all, by giving in
exchange for the property seized, receipts which will enable him
from his own government or possibly from his enemy's govern-
ment — I suppose it depends on the issue of the war — to come
and claim payment for the goods which have been taken from
him, so far from interfering with the trade or injuring the trade
of the enemy, you are enabling him to carry it on, and therefore
you are defeating one of the main objects which you have in
prosecuting the war, viz., to interfere with his trade. But there
is, in my mind, a much more important view of the matter that
we are discussing than any of those that liave been ventilated
this morning. It is quite clear that a strong view has been taken
by the American members of this Association. It is possible,
and probable, that there are members who are not Americans, who
support and favour their view. It is equally clear that the English
members take a different view, and I do not hope, from the dis-
cussion that has taken place this morning, that any change will
be brought about, by any amount of argument, in the views which
are taken by the one side and by the other. There is a cleavage
of opinion which it is impossible to heal up. Now I ask the
Conference, what is the object of going to a resolution under
such circumstances? What purpose will it serve? It will not
please the Americans if we carry resolutions here in support of
the view taken by Sir Walter Phillimore, a view which I myself
entirely endorse. I am quite sure it would not please the English
members if the American view were to be adopted. The dis-
cussion, in fact, is purely academic No real result can follow
from it, and in those circumstances, what I suggest is, that we
should not occupy our time in discussing the matter further, and
not pledge the Association by a resolution which, after all, will
please only some, and which will be of no practical value when it
is passed
Mr. Brainerd : Mr. President, I was quite ready to present
my views upon the question agitated in this discussion, but it
u
( 290 )
seems to me the suggestion made by Sir John Bigham is a very
proper one. I dissent entirely from the American view of this
question. I had not, though somewhat a student of International
Law, given veiy careful consideration to this particular question
at an early stage of my life; but when it was brought to my
attention, I endeavoured to make a veiy careful examination
of it, and I had of course before me, and in me, the American
view of this question. But after the examination which I have
given to it, I am satisfied that the American view cannot be
sustained upon reason or upon fact I quite agree, however, that
in the state in which this question now is in the public mind,
and in the mind of international lawyers, that this Association
ought not to express an opinion by a resolution.
Sir Walter Phillimore : I wanted to say that I quite agree
with my colleague, Sir John Bigham. Indeed, the same idea
passed through my own mind, that it would be very undesirable
to have a resolution, but I did want to say that I hoped we
should not stop the discussion because we have no resolution.
I was particularly anxious to hear the discussion, and I think
M. Fromageot has prepared a paper which we have not yet
heard. M. Autran has now arrived and may wish to say
something on the subject, and although we have heard from
M. Marais his very stringent criticisms on Mr. Barclay's proposal,
yet he did not quite disclose, I think, as I should wish, his mind
upon the proposition; and therefore I rather hope, though it
should come to no resolution, that the other members who wish
to speak on the subject before the debate closes, will express
their views. In particular, I should have been extremely sorry
if the discussion had stopped before hearing what Mr. Brainerd
had just said.
M. Fromageot spoke shortly against the American doctrine.
Mr. Thomas Barclay : As a good deal of criticism has been
applied to me for my unfortunate proposal, I will just say one
or two words and then withdraw it My proposal was simply a
means, as I thought, of leaving the main question unsolved, and
( 29« )
coming to an agreement upon that which we have agreed upon
already, viz., that we must harmonise war as much as possible,
whether it is on sea or on land. However, as Sir Walter
Phillimore has pointed out to me, there is a possibility of my
proposal being entirely misunderstood, and if that is so, I do
not wish to press it for a moment Sir John Bigham has spoken
in the same sense about it, but I must point out to M. Fromageot
that I anticipated exactly what he has called attention to, viz.,
that there is a difference between warfare on land and warfare
at sea, and for that reason I inserted the words ''so far as
possible," the rule should be assimilated. However, my proposal
seems not to have had the result of bringing together our
American members and our English members, and as that was
its only object, I now withdraw it formally, and the original
proposals of the American members stand as proposed.
M. AuTRAN supported the view of the American members of
the committee.
Prince Cassano : Gentlemen, I entirely endorse the last
words that M. Autran pronounced, and I may say that they were
the first expression of a humane and liberal view that has been
pronounced during this discussion. It is quite true that we here
are a body which is not a political body, but a body for the
purpose of improving all kinds of relations between peoples
and between parties of human kind. So I entirely agree with
him, but as, first, it is better to proceed with the discussion, and
secondly, as I think just now there are two currents of opinion
so greatly differing from each other, I propose: "That the
question of the immunity of private property at sea from capture
dnring war be referred to a special committee with instructions
to report to the next Conference." In moving this resolution, I
think that I am with the majority of the members ; at any rate,
I think that I am right in moving this, because the subject is
one of the most important, as has been shewn, and also because
the reasons given for or against the proposals of the American
members of the committee were not discussed at length, or at
U 2
( 292 )
any rate, were not fully aflfordcd means of discussion here.
Therefore I think this is one of the questions that would interest
the Association, and would be a proper matter for discussion at
the next meeting.
The President : M. Marais proposes a resolution which the
Secretary will kindly read.
Mr. Alexander: The resolution is in French and also in
English, as follows :
'* Considdrant que la crainte des consequences de la guerre
maritime est un 6l6ment important de conservation de la
paix pr^alablement k la declaration de guerre : Consid^rant
qu'aucun peuple ne pent aligner d^avance sa liberty
d'action en ce qui conceme le droit de prise maritime
sans compromettre dventuellement ses moyens de guerre :
TAssociation est d'avis qu'il n'y a pas lieu de prendre
une resolution en ce qui conceme la question en
discussion.''
" Considering that the fear of the consequences of maritime
war is an important element of pacification previously to
the declaration of war, and considering that no nation
can beforehand alienate its liberty of action with regard
to the right of maritime seizure without perhaps com-
promising its means of carrying on war, the Association
is of opinion that it is not desirable to adopt any resolution
regarding the question under discussion."
The President: Gentlemen, you have the two propositions
before you of Prince Cassano and M. Marais.
Sir John Bigham : I beg to second the resolution proposed
by M. Marais.
Sir Walter Phillimore : I have pleasure in supporting it.
Mr. T. G. Carver, Q.C. : I also support it Prince Cassano's
resolution has not been seconded, but may I suggest to him that
he is only proposing to do now what was done last year, and
perhaps, for what I know, in other years also. We are all
( 293 )
apparently of opinion that it is not a matter which this Association
can, with any profit, come to a resolution upon. We shall not
be able to do that any better next year than we can do it now.
Mr. Sinclair Cox: I formally second the proposition of
Prince Cassano in order to bring it before the Conference.
Mr. Benedict : Mr. President and Gentlemen. There is one
point which I wish to suggest, which has come to my mind while
listening to the various speeches upon this matter. I have very
easily seen that there were very different views as to what would
be the proper rule of law in this matter, and I had come to very
much the same conclusion which the gentleman who has just
spoken announced, namely, that it would not be possible to
harmonise the members of this body upon either of the views
which have been specially advanced ; but allow me to ask if there
is not one point as to which all the members of this body are in
accord, viz., that they are not satisfied with the present condition
of the law on this question. Certainly the American committee
would plant itself strongly upon that ground, that it was not
satisfied with the present condition of the law. I infer, also, that
Mr. Barclay and those who would favour his proposal would like-
wise say, " We also are not satisfied with the present condition of
the law."
Mr. Thomas Barclay: No.
Mr. Benedict: I think Mr. Barclay would, because he
recommended a change. If I am not correct, then my con-
clusions would not follow. Now lookmg at the matter practically,
if we are agreed that there ought to be some change, we must
agree on ^another matter, viz., that that change can only be
effected by a convention of the maritime powers. Now, as I
understand, the American resolution only goes so far as that it
does not undertake to commit the members of this Conference
to either view which has been expressed, for the resolution is as
follows, simply: That there should be a modification of the
present rules of naval warfare, so far as the rights to capture
peaceful and non-offending maritime property is concerned ; and
( 294 )
it does not profess to put forward its views, or any views, as to
what should be the modification which should be adopted by the
maritime powers. Therefore it seems to me that unless there
is a serious division between us as to whether the present situation
is approved or not, we might very well pass the American
resolution, seeing we are all agreed upon one thing, viz., that
we wish the maritime powers would come together again and
would consider again, as they have done before, the question of
what should be the law in reference to this matter, and should
come to some agreement which might be accepted by alL That
is the position which, it seems to me, this Association might very
well take. It goes one step beyond the proposition of M. Marais,
and yet it substantially comes to the same thing, except that the
expression would be the expression of the wish of this Conference
and the hope that the matter might be taken up again for con-
sideration by the maritime powers. In that view it seems to me
the Conference might very well pass the American resolution
without expressing any opinion whatever as to the proper form
of the modification to be made.
Mr. Thomas Barclay: There is something to be done
regarding maritime capture perhaps by way of adopting the
practice prevailing in dealing with property on land. I do not
say what it may be. I think, myself (and I put it in my paper
which was read at Buffalo), that it is a question for municipal
law — a question for the United States for instance, whether they
will pass a law that if any of their ships are captured by the
enemy, they will indemnify the owner.
After the discussion which has taken place, I suppose we are
entitled to change our views or modify our opinions, and I must
say that after this discussion I am still more puzzled to know
what we should do, and I should be inclined to think that the
time has not yet come, and is not yet ripe, to deal with the
subject of interfering with the present practice in relation to
maritime capture. Therefore I wish to change once more, and
to say that I^ will come to M. Marais' proposal, which has been
( 295 )
seconded, with one little modification, which perhaps M. Marais
will allow me to read, because he has accepted it That little
modification is in the first consideration, viz., '* preservation of
peace " instead of '' pacification." Subject to that modification,
which will probably be accepted by the seconder, as it has been
accepted by the proposer, I wish to support M. Marais' proposal.
M. Marais : I have only one word to add I should agree with
what Mr. Benedict has said if the resolution of the American
Committee stood by itself alone without any previous considera-
ation ; but when you compare the resolution with the words which
precede it you find such expressions as this, for instance. '' It is
high time for the sake of humanity that a stop were put to this
enormity. The United States are now offering in all their treaties
an article engaging that unarmed merchant vessels shall pursue
their voyage unmolested. This will be a happy improvement in
the law of nations." Then the first American resolution resembles
the words which precede that resolution ; and if, by itself, it is
merely the wish of something better in the way of amelioration,
when we inquire what these ameliorations might be, we find that
the amelioration pointed at is, ''not molesting maritime property."*
So that it is clear that what the resolution presented by the
American committee leads to is, the immunity of private mari-
time property ; and the consequence of the resolution, if it were
adopted by the Conference with the present "considerations," or
preambles, would mean an acceptance of the previous considera*
tioDs, and that is a course which a great many of us think it is not
proper to adopt Therefore, in the resolution I proposed, I think
it would be more politic, and perhaps more practical, not to say
anything either way — neither in the way of the American resolu-
tion nor of the English point of view ; and so I ask the Conference
to say that there is no desire to pass any resolution whatever in
regard to the question under discussion.
Mr. J. Parker Kirlin : Mr. President, it seems to me that
the preamble of M. Marais' resolution is open to precisely the
same objection that he has just made to the prologue of the
( 296 )
American resolution, as tlie motion here is not to adopt the
prologue, but merely to adopt the resolution alone. On our
side, I submit our motion is less objectionable to the Conference
than that of Mr. Marais, in which he asks us to adopt his pre*
amble as part of the resolution.
Sir John Bigham : I should just like to say one word further.
Mr. Benedict said that if we adopted the American resolution
we should pledge ourselves to nothing. To begin with, I do not
see the object of passing a resolution which pledges ourselves to
nothing ; and, to go on with it, I do not agree that it pledges us
to nothing ; because, as M. Marais has pointed out, the resolution
is the consequence of a previous discussion of the matter, and
you cannot pass the resolution without more or less, at all events,
approving of that wnich leads up to it, and I am not at all pre-
pared to say that there should be any modification at all of the
present rules of naval warfare, so far as concerns the right of
capture, and so on. Those are the very terms of the resolution,
casting aside altogether the preliminary discussion which leads up
to it I disapprove, on my part, of the terms of the resolution
itself, and I say that, so far from pledging us to nothing, it does
pledge us to something, and it pledges us to something which,
from the English point of view, I am quite sure the English
members do not desire to pledge themselves to. With reference
to what Mr. Kirlin has said, I cannot help thinking that he has
not sufficiently considered the preamble of M. Marais' resolution.
It seems to me that it in fact pledges us to nothing, and it does
give the reasons why, as it seems to me, all, or most of us at all
events, think it is undesirable to come to any resolution at alL
Mr. Benedict : If I held the view with reference to the effect
of the adoption of this resolution which has been expressed by
one or two members here, I should quite agree with them, but I,
from my experience, most vigorously protest against the idea that
the adoption of the resolution conveys any approval or adoption
of the report by which those resolutions are preceded The
motion is simply to adopt those resolutions as the voice of this
{ 297 )
Association — not the previous report — and therefore it seems to
me still that if we were agreed that the matter was one which
should be taken up for consideration — which it would be wise to
take up for consideration — by the maritime powers, our passing
this resolution would only be the expression of that desire ; and,
so far as that goes, it certainly would commit this Association,
but beyond that it certainly would not commit the Association in
my opinion.
Prince Cassano then offered to withdraw his resolution, but
expressed his objection to the recitals of the resolution proposed
by M. Marais.
Mr. Sinclair Cox: May I say, in reference to what fell from
Mr. Benedict, that I venture to submit to the Conference that
even if you omit altogether the preamble to the American resolu-
tions, the American resolutions in themselves are dangerous from
our point of view, because, first, there is an insertion of the expe-
diency of a modification. One knows that the modification is only
suggested to be in one direction. Then the second resolution
suggests the calling of a congress of accredited representatives of
all maritime powers to consider the subject Such a congress
called into existence on these lines would have a trend directly
in the direction which the first resolution indicates. The English
view is that we should rest where we are, and for that reason I
venture to say, from our point of view, the resolutions alone of
the American committee are subject to serious objections.
Mr. Angier : I beg strongly to urge the proposal to erase the
preambles. They are of no use, and they do not meet with the
approval, apparently, of a large section of the Conference. I
think the second sentence is quite sufficient as a resolution for us
to pass.
The President : M. Marais agrees to withdraw the first recital
from his proposition, and leave it thus: '* Considering that no
nation can beforehand alienate its liberty of action with regard to
the right of maritime capture without possibly compromising its
( 298 )
means of carrying on war, the Association is of opinion that it
is not desirable to pass a resolution regarding the subject under
discussion.*
Mr. Angier thought that unanimity would be more easily
obtained by making the resolution as simple as possible, and that
there was no object in setting forth the opinion expressed in the
second recital.
Mr. T. G. Carver agreed with him.
M. Marais agreed to this course, and the President stated
that the resolution now stood thus : —
" L' Association est d'avis qu'il n'y a pas lieu de prendre une
resolution en ce qui conceme la question en discussion."
"The Association is of opinion that there is no occasion
to pass any resolution regarding the subject under
discussion."
The resolution in this form was put to the meeting and carried
with three dissentients.
Sir Walter Phillimore, as chsurman to the Executive Council,
then presented its report for the past year.
Report of Executive Council.
During the past year the Executive Council has met in London
five times, and has received reports from time to time as to
the proceedings of the various special Committees. Reports from
these Committees on the Hague Convention, Marine Insurance
Rules, and the Execution of Foreign Judgments, and the Im-
munity of Private Property from Capture at Sea, have already
been presented to the Conference.
By the kind invitation of the Rouen Chamber of Commerce
and the Municipality of that city, the Association has been
enabled to meet for the first time in France under the most
favourable circumstances, in a ci^ peculiarly fitted by its anti-
( 299 )
quarian interests and its commercial importance for the reception
of such a gathering.
The following members of the Association have died daring
the past year : —
Rear-Admiral P. H. Colomb, R.N., London.
Evelyn Lowther Fawcett, Esq., Constantinople.
The Hon. W. C. Endicott, Massachusetts.
Consul W. RoHss, Gothenburg.
His Excellency C. H. Schweigaard, Christiania.
Since the last Conference, thirty-three gentlemen have been
elected members of the Association. A financial statement has
been prepared and will be printed in the proceedings of the
Conference.
On behalf of the Executive Council : —
Walter G. F. Philumore, Chairman.
Joseph G. Alexander, I Hon, Gen,
George G. Phillimore, | Sees,
The Report was adopted by the Conference.
Sir Walter Philliitors, on behalf of the Executive Council,
proposed the election of the following additional officers of the
Association : —
Honorary Vice-Presideni for France —
M. Richard Waddington, Senator of the Department
of the Seine Inf(^rieure, President of the Rouen
Chamber of Commerce.
Vice-Presidents for France: —
M. Arthur Desjardins, premier avocat-gdndral \, la Cour
de Cassation, Paris.
M. Octave Marais, ancien bitonnier de Tordre des
avocats, Rouen.
Vtce-Presidcnt for the United States—
Hon. Robert D. Benedict, LL.D., New York City, N.Y.
( 300 )
Vke-President Jor Japan —
M. SAKUYfi Takahashi, Professor of International Law
at the Imperial Naval College of Tokyo.
Members of the Council : —
M. AuTRAN, docteur en droit, Marseilles.
M. Fromageot, docteur en droit, avocat \ la cour
d*appel, Paris.
M. GovARE, docteur en droit, avocat k la cour d'appel,
Paris.
M. Ernest Deshayes, President de la Soci^te de
Defense des Int^rets de la Valine de la Seine, Rouen.
M. Emile Stocquart, docteur en droit, avocat k la cour
d'appel, Brussels.
These gentlemen were declared duly elected.
Sir Walter Phillimore also announced that the following
gentlemen had been appointed to constitute the Committee on
Foreign Judgments.
For Belgium : —
Dr. Stocquart, Brussels.
M. Vauthier, professeur k Tuniversit^ libre de Bruxclles.
M. Jules Leclercq, vice-president du tribunal de premiere
instance, Bruxelles.
Subject to the consent of the two latter gentlemen being obtained.^
JFor France : —
M. Octave Marais.
M. GoVARE.
M. Fromageot.
For the United States :—
Hon. Robert Benedict, LL.D., New York.
Mr. C. Brainerd, New York.
Mr. Eugene P. Carver, Boston.
' Both gentlemen have since declined to serve on the Committee, but
Messieurs Arthur Lacourt and Leon Hennebieg, avocats k la cour d'appel,
Brussels, have kindly consented to act in their place.
( 30I )
Far Great Britain : —
Mr. J. Alderson Foote, Q.C.
Mr. G. G. Phillimore.
Mr. E. W. Sinclair Cox.
Sir Walter Phillimore further suggested, on behalf of the
Executive Council, that in view of the important questions having
to be carried over from this Conference, it would be desirable
for the Association to hold a Conference next year. This
recommendation was approved by the Conference.
Sir Walter Phillimore then mentioned that the Executive
Council had considered the alternatives of holding such a Con-
ference in Scotland, at Glasgow, Edinburgh, or Aberdeen, or else
in one of the Scandinavian capitals, Copenhagen, Christiania, or
Stockholm.
Mr. Barclay mentioned the fact of the Glasgow Exhibition
being fixed for 1901.
The Law of Prize.
The following paper contributed by the Hon. Everett P.
Wheeler, New York, was then presented to the Conference, and
in the absence of its author was accepted and ordered to be
printed in the proceedings.
7^ Law of Prize as affected by decisions upon Captures made
during the late War between Spain and the United States.
The Constitution of the United States of America was framed at
a time when the influence of Montesquieu was commanding. The
theory of the separation of the three departments of Govern-
ment : Executive, Legislative, and Judicial, is one of the points
most insisted upon by the great French jurist. The United States
Constitution provides for such a separation. Some of the features
of this Constitution have been modified by the stress of unex-
pected situations that have developed in the history of the
( 30J )
Republic. But the theory before mentioned has been closely
adhered to. Neither in the central Government of the United
States, nor in those of the separate States composing the Federation,
is there any such thing as a responsible or parliamentary govern
ment. And in all the jurisdictions, whether of the Federal or
State Courts, the right and the duty of a Court to annul a statute
which has passed all the forms of legislation, on the ground that it
is in violation of the fundamental law or constitution of the country,
is well recognised, and has been from the foundation of the
Government. I am far from suggesting that this absolute
independence of the judiciary is objectionable. At the same
time it must be admitted that it sometimes puts the Executive in
a trying position. It is quite possible, and has indeed sometimes
happened, that in the administration of foreign relations the
Executive has determined upon a certain line of policy which the
Courts, in cases coming before them for adjudication, have refused
to enforce. This has been notably true in questions arising in
reference to the rights of neutrals and the law of prize and of
blockade. The policy of the Executive in dealing with these
questions has been far more liberal than one would suppose from
reading the decisions of the Courts of Justice.
This is in large measure to be attributed to the fact that the
law of the United States has for its foundation the law of
England, and that the decisions of the English Courts have always
been cited with great respect in the tribunals of America. Indeed,
the jurisprudence of the United States is based upon English
authorities to a much greater extent than anyone would suppose
possible, who had not been a careful student of American law.
During the struggle between Napoleon and the older Govern-
ments of Europe, including that of Great Britain, the extent of
the rights of neutrals became the subject of frequent discussion in
prize courts. The necessities of the conflict compelled both sides
to take ground, in reference to foreign trade, which nothing but
necessity could justify or excuse. The policy of the British
Government on this subject, as it existed at the time, found
expression not only in the celebrated Orders in Council, but in
( 303 )
the judgments of the British prize courts. The Kingdom of
Great Britain was fortunate in having for many years, as the
Judge of the Court of Admiralty, Sir William Scott, afterwards
Lord Stowell. He was a man of extensive learning, of extra-
ordinary vigour and acuteness of intellect ; and the luminous style
of his judgments makes them models of judicial expression.
These judgments were read in America, and became the founda-
tion of the law of prize as administered in the Courts of the United
States. These Courts, during the Civil War between the Northern
and Southern States of the Union, realised the necessity of
enforcing the law of blockade with the utmost strictness. The
decisions of Lord Stowell were adopted as precedents.
During the late war between the United States and Spain,
counsel who were entrusted with the conduct of prize cases before
the Supreme Court of the United States, found themselves con-
fronted with a body of decisions which, on the whole, were far
more favourable to the exercise of belligerent rights than to the
protection of the rights of neutrals. The policy of the Executive
was more liberal. This was shown at the outset of the war by
the declared adhesion to the Declaration of Paris. The reason
given by the American Government in 1856 for its refusal at that
time to adhere to the Declaration of Paris was the fact that this
failed to prohibit the capture of private property at sea. At the
outset of the Spanish War, the Government of Spain also declared
its adhesion to the Declaration of Paris, and although it reserved
the right to commission privateers, yet it did not exercise this
right. It may fairly be said that the Declaration of Paris has by
universal consent become a part of the law of nations.
The action of the President in regard to the Declaration of
Paris is thus stated in his Annual Message to Congress, trans-
mitted December, 1898 (p. 7) :
" In further fulfilment of international duty, I issued, April 26, 1898, a
proclamation announcing the treatment proposed to be accorded to vessels
and their cargoes as to blockade, contraband, the exercise of the right of
search, and the immunity of neutral flags and neutral goods under enemy's
flag. A similar proclamation was made by the Spanish Government. In the
condttct of hostilities the rules of the Declaration of Paris, including absten-
( 304 )
tion from resort to privateering, have accordingly been observed by both
belligerents, although neither was a party to that declaration.**
It is the opinion of two writers on International Law, of the
highest rank, Pistoye and Duverdy (" Des Prises," vol. i. p. 375),
that by the modern law, in consequence of the Declaration of
Paris, a vessel must be notified to depart from before the
blockaded port before she can be captured, and that the contrary
rule was the result of the doctrine of the British Orders in Council
during the Napoleonic wars, which is now given up by that
country.
" The old rule was that it was a breach of blockade to enter upon a voyage
to the blockaded port. This rule is now changed, because neutrals are obliged
only to respect effective blockades. It may well be that a blockade, of which
official notice has been given, is not an effective blockade, or it may be that a
blockade which has been established by a sufficient force may have ceased to
exist. Neutrals then have the right to begin a voyage to a blockaded port in
order to see if the blockade still continues. They are only guilty when, while
the blockade continues, they actually endeavour to break it.*' *
In the opening words of the President's proclamation of
April 26, 1898, reciting the fact of war with Spain, it was
declared "to be desirable that such war should be conducted
upon principles in harmony with the present views of nations, and
sanctioned by their recent practice" (30 Stat., p. 1770).
This effect of the Declaration of Paris is only an affirmation
of the original American rule, which the stress of the war with
Napoleon led Lord Stowell to reject. The stress of the war with
the South induced our Courts, at that time, to follow to some
extent the English rule. Our government had not then declared
its adhesion to the Declaration of Paris. But the old American
rule, as laid down by the Executive, was in accordance with this
statement of Pistoye and Duverdy.
" " On considerait comme une violation de blocus le fait de se dinger vers
des lieux qui etaient bloqu^s. Aujourd'hui il n*en saurait 6tre m^me, car des
neutres ne sont obliges de respecter que les blocus effectifs ; or, il pent se
faire qu'un blocus notifie officiellement ne soit pas effectif. II peut meme se faire
qu'un blocus qui a ^te etabli avec des forces suffisantes ait cesse d'exister ; les
neutres sont dans leur droit de se dinger vers un port bloqu^ pour voir si le
blocus subsiste toujours ; ils ne sont coupables que lorsque, le blocus existant,
ils cherchent k le violer."
( 305 )
" Wheaton on Captures " (pp. 342, 343), quotes a letter from
the British Admiralty Office, January 5, 1804 (by authority of
Secretary of State for Foreign Affairs, p. 343). In this it is stated
that the British Government "sent orders to Commodore Hood not
to consider any blockade of these islands as existing, unless in
respect to particular ports which may be actually invested, and
then not to capture vessels bound to such ports, unless they shall
previously have been warned not to enter them."
This was approved by the Government of the United States
(Tfo//., p. 353, Dispatch, Mr. Pinkney to Marquis Wellesley).
In this dispatch our Minister to the Court of St. James adds
(P- 353) :—
" No comment can add to the value of that manly and perspicuous exposi-
tion of the law of blockade, and made by England herself, in maintenance of
rules which have been respected and upheld in all seasons and on all occasions
by the Government of the United States."
Again, in another dispatch the American Minister maintains
(PP- 354, 355) '
" That a vessel cleared or bound to a blockade port shall not be considered
as violating in any manner the blockade, unless, on her approach towards such
port, she shall have been previously warned not to enter it.**
Some of the reasons for the historic policy of the United
States are thus stated by Wheaton (*' Digest of International
Law," vol. iii. sect. 405, p. 659) :
" The policy of the United States is to maintain neutral immunities for the
following reasons : (i) The probabilities of war are far less with us than with
the great European States. From the nature of things, points of friction
between the United States and foreign nations are comparatively few. We
have an ocean between us and the great armed camps of the Old World ; and,
while there are innumerable questions as to which one European State may
come into collision with another, the only points as to which we would be
likely to come into collision with an European State are those concerned in the
maintenance of neutral rights. It was to maintain such rights that we went to
war in 18x2 ; and except during the abnormal and exceptional spasm of the
late Civil War, our national life has heretofore been the life of a neutral and
vindicator of neutral rights ; and neutrality, when our system took shape, was
arduous. The world was absorbed in the tremendous contest between France
on the one side and England, with her allies, on the other. At times we were
the only civilised power that remained neutral. Threats and blandishments
X
( 3o6 )
were used both by France and England to drive us from our position ; but that
position was not only defined and defended, under General Washington's
administration, in papers so able and just as to be the basis of all future
proclamations of neutrality, but was adhered to though necessitating a war for
its defence. Our international attitude is, from the nature of things, that of
neutrality ; and of the rights of neutrals we are, from the necessity of the case,
the peculiar champions. (2) Although the richest country in the world, our
•traditions and temper are adverse to large naval and military establiahmenu.
(3) The idea of pacific settlement of disputed international questions is one of
growing power among us ; the horror of war has not been diminished by the
experience of the Civil War. There is no country in the world where love of
order is so great, and in which public peace is kept by an army and navy so
small. It would be hard to convince the people of the United States that the
immense and exhausting armaments of the great European States are not in
part caused by the assigning of undue power to belligerents, and that one of
the best ways of inducing a gradual lessening of these armaments would be the
reduction of these powers."
In the preface to the same work, second edition, vol. i., Wheaton
does no more than justice to the traditional policy of the United
States upon the subject :
''In Mr. Fillmore's second annual message, in a passage understood to
have been furnished by Mr. Webster, then Secretary of State, we were told
that one of the most eminent of British Statesmen said in Parliament, while
a Minister of the Crown, * that if he wished for a guide in a system of neutrality
he should take that laid down by America in the days of Washington and the
secretaryship of JeflFerson.* And we see, in fact, that the Act of Congress of
18 18 was followed the succeeding year by an Act of the Parliament of England
substantially the same in its general provisions.
**The policy of the United States in 1793 constitutes an epoch in the
development of the usages of neutrality. There can be no doubt that it was
intended and believed to give effect to the obligations then incumbent upon
neutrals. But it represented by far the most advanced existing opinions as to
what those obligations were ; and in some points it even went further than
authoritative international custom has up to the present time advanced. In
the main, however, it is identical with the standard of conduct which is now
adopted by the community of nations.''
We have now to compare with these statements as to the
policy adopted by the Executive of the United States, the
decisions of the United States Supreme Court made during the
late war.
( 307 )
I. Sufficiency of Blockade,
In the case of the Olinde Rodriguez^ a question arose as to
the sufficiency of the blockade at the port of San Juan. The
steamer Olinde Rodriguez was captured by the cruiser Yosemite.
She was a French mail steamer, and the port of San Juan was one
of her regular ports of call. The proclamation of the President
declaring San Juan in a state of blockade, was issued June 27,
1898. After this proclamation the steamer entered the port,
came out of it, was signalled by the Yosemite, and had an official
warning of the blockade of that port entered in her log. On a subse-
quent voyage she was captured by the cruiser New Orleans^ on the
ground that she was then attempting to run the blockade. The
Judge of the Court of first instance held that the blockade of
San Juan was not an effective blockade, and relied upon earlier
cases, in which it was held that the presence of one blockading
vessel off a port was not sufficient to make the blockade effective.
On this point he was over-ruled by the Supreme Court of the
United States.
Mr. Chief Justice Fuller, delivering the opinion of the Court,
says:
" The fourth maxim of the Declaration of Paris (April 16, 1856), was :
• Blockades, in order to be binding, must be eflfective, that is to say, main-
tained by a force sufficient really to prevent access to the coast of the enemy.'
Manifestly this broad definition was not intended to be literally applied. The
object was to correct the abuse, in the early part of the century, of paper
blockade where extensive coasts were put under blockade by proclamation,
without the presence of any force, or an inadequate force ; and the question of
what might be sufficient force was necessarily left to be determined according
to the particular circumstances.
" This was put by Ix>rd Russell in his note to Mr. Mason, of February 10,
1861, thus:
** * The Declaration of Paris was, in truth, directed against what were once
termed ' paper blockades,' that is, blockades not sustained by any actual force,
or sustained by a notoriously inadequate naval force, such as an occasional
appearance of a man-of-war in the offing or the like. The interpreUtion,
therefore, placed by Her Majesty's Government on the Declaration was, that
* Volume 174 United States Reports, p. 510.
X 2
( 3o8 )
a blockade, in order to be respected by neutrals, must be practically effective.
It is proper to add that the same view of the meaning and effect of the articles
of the Declaration of Paris, on the subject of blockades, which is above
explained, was taken by the representative of the United States at the Court of
St. James (Mr. Dallas) during the communications which passed between the
two governments some years before the present war with a view to the accession
of the United States to that Declaration.' (Hall's Int. Law, sect. 260,
p. 730, note.)
**The quotations from the Parliamentary debates of May, 1861, given by
Mr. Dana in note 233 to the eighth edition of * Wheaton on International Law,'
afford interesting illustrations of what was considered the measure of effective-
ness ; and an extract is also there given from a note of the Department of
Foreign Affairs of France, of September, 1861, in which it is defined as
' forces sufficient to prevent the ports being approached without exposure to a
certain danger.'
" Such is the settled doctrine of the English and American Courts and
publicists, and it is embodied in the second of the instructions issued by the
secretary of the navy (June 20, 1898, General Order No. 492) : * a blockade to
be effective and binding must be maintained by a force sufficient to render
ingress to or egress from the port dangerous.'
" Clearly, however, it is not practicable to define what d^ree of danger
shall constitute a test of the efficiency and validity of a blockade. It is enough
if the danger is real and apparent."
The Court held that the question of effectiveness was not to
be controlled by the number of blockading ships. The opinion
refers to the treaty between France and Denmark in 1 742, to the
treaty of 1760 between Holland and the two Sicilies, and to the
treaty between Prussia and Denmark of 18 18. In all these treaties
it was stipulated that the presence of more than one belligerent
vessel should be essential to the validity of a blockade. But the
Court holds that such particular agreements between nations are
not of special importance in fixing general international law, and
concludes :
"That if a single modern cruiser blockading a port renders it, in fact,
dangerous for other craft to enter the port, that is sufficient ; since thereby the
blockade is made practically effective."
The Yosemife^ the steamer which first maintained that blockade,
was an American merchant ship converted into an auxiliary
cruiser. Her maximum speed was 15 J- knots. She mounted
eighteen guns, the largest of which was 5 inch, their greatest range
3 J miles. The Nciv Orleans was an armoured cruiser whose
maximum s[)eed was 22 knots. She mounted twenty-four guns,
( 309 )
the largest of which were 6 inch, and their maximum range was
5? nautical miles. Moving at maximum speed, she could cover
in ten minutes any point in a circle nineteen miles in diameter, and
her electric search-light could sweep the sea at night for ten miles
distant. Obviously, a blockade by such a vessel was sufficient
where the entrance to the blockaded port was by one channel
only. On the other hand, it is quite easy to see that a port might
have several channels separated by a distance of ten or more
miles, and that in such a case a blockade by one cruiser only
would not be sufficient.
2. Intent to Run a Blockade.
In the same case, the Court held that there was not sufficient
proof that the steamer in question intended to run the blockade.
It was shown that her consignee had requested the captain to
stop at San Juan and take fifty first-class passengers. This was a
temptation to enter there. But the Court held that the un-
contradicted evidence from the ship's officers to the effect that
there was no intention to run the blockade of the port, was
controlling. In dealing with this question of evidence, the Court
says :
"The evidence of eril intent most be clear and convincing before a
merchant ship belonging to citizens of a friendly nation, will be condemned."
On the other hand the Court held that the movements of the
steamer were sufficiently suspicious to warrant a belief on the part
of the captors that she was endeavouring to draw them within range
of the shore batteries, under cover of which she could safely enter,
and on this ground awarded restitution of the prize without
damages, and imposed upon the owner payment of the costs and
expenses incident to her custody and preservation.
In the case of the Newfoundland^ the Court also had to deal
with the question of actual intent to run the blockade. The
vessel in that case was captured near the port of Havana. There
' 176 United States Reports, page 97.
( 3IO )
also the all^ation of the captors was that the vessel was loitering
near a blockaded port, and manceuvring to get under the protection
of the shore batteries. There was the additional circumstances of
suspicion that the vessel had been warned off one port in the
Island of Cuba, and was sailing westward, ostensibly with the
view of passing around the western end of the island, whereas her
nearest route to her port of destination would have been to
eastward, passing around the eastern end of the island. This,
however, was held not to be controlling.
In short, in dealing with evidence of actual intent to run a
blockade, the Supreme Court of the United States has shown
liberality towards neutrals, and has exacted from the captors very
decisive proof of intent to violate the blockade.
On the other hand, in the case of the Adula^ the Court
followed the most strict of the decisions during the Napoleonic
wars and the Civil War of the United States. There was no
serious question in this case as to the intent of the Adula. She
was a British ship chartered by a Cuban to go from Kingston in
the Isitind of Jamaica to Guantanamo and Santiago, in the Island
of Cuba. She went in ballast, with no cargo, and for the purpose
of taking off refugees. She had been engaged in this business on
several prior voyages, with the consent of the United States
Government. The Court held in the first place that to consti-
tute a valid blockade it was not necessary that any official notice
of the blockade should have been given. Neither Guantanamo
nor Santiago were included in the proclamation of the President,
declaring what ports in the Island of Cuba should be considered
as blockaded. But the Court held that it was competent for the
commander of the squadron off these ports to maintain a block-
ade there, and that notice of a blockade de facto was sufficient
to charge a ship sailing for such a port with the intent to
violate it It appeared that the Adula^ which was a slow vessel,
having a speed of only eight knots, was instructed to request per-
mission to enter these ports, and the speed of the vessels main-
taining the blockade was such that any attempt on her part to run
* 176 United States Reports, p. 361.
( 3" )
the blockade would have been futile. No attempt was made.
Permission was, in fact, requested, and indeed the Adula was at
anchor when she was seized. Nevertheless, the Court adhered
to the letter of earlier decisions : that the mere fact of sailing for a
poit known to be blockaded, subjects the vessel so sailing to con-
denmation, and that it is unlawful even to ask permission to enter.
It was further held that the case was not altered by the fact that
the port of Guantanamo, at the time of the capture, was and had
been for over two weeks in the exclusive possession of the United
States naval and military authorities. The city of Guantanamo
was inland on a small stream, not navigable, and distant several
miles from the bay.
In this latter case, four justices of the Supreme Court dis-
sented, and the decision was, therefore, by a majority of but one
judge. It is also to be observed that, on the point last mentioned,
the decision was at variance with that of the Commission created
by the Treaty of Washington (187 1), to dispose of the matters
in difference between the United States and Great Britain growing
out of the Civil War in the United States (i 861-1865).
That Commission, which was an International Court, were of
the opinion that the law was otherwise.
The Commission was composed of one commissioner
appointed by Great Britain, one appomted by the United States
and an Italian commissioner (Count Corti) agreed upon by both
parties. A claim was presented to it by a British subject for
cargo seized upon the Circassian^ which had sailed for the port of
New Orleans before that port was captured by the Federal troops.
During the voyage the capture took place. A majority of
the Supreme Court held that inasmuch as the country in the
vicinity of New Orleans, forming part of the port, was still in the
possession of the Confederates, the blockade could not be con-
sidered as having been raised. To use the language of the Court
(2 Wallace Reports, 141) : *
" The report of the agent of the United States (Robert S. Hale) upon this
case, is contained in vol. vi., of Papers relating to Treaty of Washington,
pp. 141 to 148.
( 3" )
"The rebel rtayor and council were deposed. There was no armed
resistance, but the city was bitterly disaffected, and was kept in order only by
severe military discipline, and the rebel army was still organised in the
vicinity."
A majority of the Commission were of the opinion that the
decision of the majority of the Supreme Court in this case was
erroneous, and awarded damages to the owner of the Circassian
for the capture. It is plain, from the dissenting opinion of
Commissioner Frazer, that his dissent was based upon the pro-
position that the port of New Orleans was not in the possession
of the United States at the time the Circassian was captured,
although the city was. He substantially admits that the
Circassian would not have been subject to capture if the whole
port had been in possession of the United States. This was a
much stronger case for the captors than that of the Adula. There
was no question that it was the intent of the Circassian when she
sailed to run the blockade, if she could, whereas it was equally
clear that it was never the intention of the Adula to run the
blockade.
This case is a notable illustration of what has been already
stated, that the United States Supreme Court has often felt itself
constrained by previous decisions to decide cases of a public
character pending before it in a manner at variance with the
declared policy of the Executive.
The special message of the President, sent to Congress
April II, 1898, expresses the intention of the United States
Government in undertaking to intervene in Cuba.
Page 11: " The grounds for such intervention may be briefly
summarised as follows :
"First : In the cause of humanity, and to put an end to the barbarities,
bloodshed, starvation, and horrible miseries now existing there, and which the
parties to the conflict are either unable or unwilling to stop or mitigate. It is
no answer to say that this is all in another country, belonging to another nation,
and is, therefore, none of our business. It is especially our duty, for it is right
at our door."
On the day on which this message was sent to the Congress,
the President received, by previous arrangement, a visit from the
( 313 )
Ambassadors of Great Britain, France, Germany and Italy, the
Russian Char^ eP Affaires^ and the Austrian Minister. Sir Julian
Pauncefote, the British Ambassador, as dean of the diplomatic
corps, presented a note signed by the six visitors in their respec-
tive capacity, appealing " to the feelings of hunuuiity and modera-
tion of the President and of the American people, in their
existing differences with Spain," and expressing "a hope that
further negotiations will lead to an agreement which, while
securing the maintenance of peace, will afford all necessary
guarantees of the re-establishment of order in Cuba."
The President's response echoed the hope of a peace secured
by " the necessary guarantees for the re-establishment of order in
the island, so terminating the chronic condition of disturbance
there, which so deeply injures the interest, and menaces the tran-
quility of the American nation by the character and consequences
of the struggle thus kept up at our door, besides shocking its
sentiment of humanity."
In view of the statements made thus explicitly to the Ambas-
sadors of the neutral powers, contemporaneously with the message
to the Congress, and published to the world as the declaration,
intention, and purpose of the United States, it is not surprising
that a neutral, residing in Jamaica, should have felt justified in
sending a vessel to a port in Cuba in the possession of the United
States, respecting which no official blockade had been declared,
for the purpose of asking permission to take away refugees.
This belief on the part of the neutral was fortified by the
fact that the United States Government itself had previously
chartered from this neutral owner the very ship that was after-
wards seized, to go to a blockaded port, Cienfuegos, and bring
away refugees.
It was of more importance to the United States to have her
imdertake this last voyage than any previous one. If the earlier
refugees whom the Adula took away had not been removed, they
would not have been a burden upon the resources of the United
States j but the refugees whom the Adula went for at the end of
June did become a burden of a most serious character. It would
( 314 )
have been a distinct advantage to the United States in their
military operations if the Adula had been allowed to go to the
entrance of Santiago Harbour, and take away as many non-
combatants and neutrals from that city as she could carry. But a
majority of the Court held that relief in the premises must be had
from the Executive, and not from the Court
In view of this decision it is interesting to refer to a declaration
of the President of the United States made just after the treaty
of peace.
In his message to the Congress in December, 1898, the
following statement is made of the lesson taught from the experience
of the war (p. 37):
" The experiences of the last year bring forcibly home to us a sense of the
burdens and the waste of war. We desire, in common with most civilised
nations, to reduce to the lowest possible point the damage sustained in time of
war by peaceable trade and commerce. It is true we may suffer less in such
cases than other communities, but all nations are damaged more or less by the
state of uneasiness and apprehension into which an outbreak of hostilities
throws the entire commercial world. It should be our object, therefore, to
minimise, so far as practicable, this inevitable loss and disturbance. This
purpose can probably best be accomplished by an international agreement
to regard all private property at sea as exempt from capture or destruction by
the forces of belligerent powers. ^The United States Government has for
many years advocated this humane and beneficent principle, and is now in
position to recommend it to other powers without the imputation of selfish
motives. I therefore suggest for your consideration that the Executive be
authorised to correspond with the Governments of the principal maritime
powers with a view to incorporating into the permanent law of civilised
nations the principle of the exemption of all private property at sea, not
contraband of war, from capture or destruction by belligerent powers."
The purpose thus declared is in pursuance of the historic
policy of the United States. Under date of August i, 1823,
Mr. Adams, then Secretary of State, wrote to Mr. Middleton,
United States Minister to Russia r
**The principle upon which the Government of the United States now
offers this proposal to the civilised world is, that the same precepts of justice,
of charity, and of peace, under the influence of which Christian nations have,
by common consent, exempted private property on shore from the destruction
or depredation of war, require the same exemption in favour of private
property upon the sea. If there be any objection to this conclusion, I know
( 3'S )
not in what it consists ; and if any should occur to the Russian Government,
we only wish that it may be made the subject of amicable discussion/* *
Mr. Seward, the Secretary of State, in addressing the United
States Ministers in European countries, April 34, 1861, wrote :
** For your own information it will be sufficient to say that the President
adheres to the opinion expressed by my predecessor, Mr. Marcy, that it would
be eminently desirable for the good of all nations that the property and effecU
of private indiriduals, not contraband, should be exempt from seizure and
confiscation by national vessels in maritime war.'' *
3. Position of Cubans during the War.
An interesting question in this connection arose in the case of
the Benito Estenger? It was maintained by the counsel for the
ship that the declared policy of the United States, which has
previously been stated, in reference to the inhabitants of the Island
of Cuba, put them in the position of friends, and that a vessel
belonging to a person who had been a Spanish subject, but who
was a Cuban and friendly to the insurgents, could not lawfully be
captured. The majority of the Court, however, held otherwise,
and adhered to the old rule " that in war the citizens or subjects
of the belligerents are enemies to each other, without regard to
individual sentiments or disposition, and that political status
determines the question of enemy ownership.''
In this case also, the Court adhered to the rigour of the old
decisions in reference to a transfer of the legal title to a ship to a
neutral owner during a war. The Cuban owner, pending the war,
had executed a bill of sale of the ship to a British subject. The
burden of showing the bona fides of a sale imder such circumstances
was held to be upon the claimant, and very positive evidence was
exacted in support of the bona fides of the sale.
It must be admitted in this case that the fact that the former
^ Adams to Middleton : Wharton's Int. Law Dig., vol. iii., sect. 342,
p. 261.
• Wharton's Int. Law Dig., vol. iii., sect. 342, p. 275.
* 176 United States Reports, p. 568
( 3i6 )
owner was on board the ship at the time of the capture, and was
evidently interested in her movements, though not positively
directing them, was very suspicious.
4. Fishing Boats,
In another of the prize cases ^ the Supreme Court (also by a
divided vote) showed a greater disposition than in the case of the
Adula^ to recognise the growth and development of international
law. In that case and in others which were involved in it,
blockading vessels of the United States had captured numerous
small fishing boats which were engaged in catching fish off the
shore of the Island of Cuba, for domestic consumption. The
case was argued with great learning and ability by the counsel for
the fishermen, and he succeeded in convincing the Court that by
international law, by the general consent of civilised nations, and
independently of express treaty, fishing vessels honestly pursuing
the calling of catching and bringing in fresh fish were exempt
from capture.
The Court recognised that such a calling might often be made
a pretext for obtaining information as to the coast and the fleet of
an enemy. Several cases were cited, in which the fishery was
held to have been such a pretext in the British Channel during
the Napoleon wars. The decision does not impair the right of
one belligerent to seize fishing boats shown to be actually engaged
in obtaining information for the other belligerent.
5. Mail Steamers.
In the case of the Panama * it was argued by counsel for the
owners that under the modem law of civilised nations mail
steamers were exempt from capture : and further, that under the
circumstances of that case the United States must be considered
» The Paquete Habana, 175 United States Reports, p. 354.
' 176 United States Reports, p. 535.
( 3'7 )
as having consented to the voyage, and thereby impliedly waived
the right to seize the vessel.
The Panama was a Spanish mail steamer engaged in trans-
porting passengers, mails, and freight between New York and
Havana. She was cleared by the United States authorities from
the New York Custom House, and sailed from New York for
Havana on the 20th of April, 1898, with United States mails on
board. An Act of Congress declared war to have existed from
the twenty-first of April. The Court held that such clearance and
carriage of mails were subject to the right of the Government, in
case of a declaration of war, to seize the vessel before she reached
her destination.
6. Presidents Proclamation,
At the beginning of the war the President of the United
States, following the practice which had previously been adopted
by many civilised nations, issued a proclamation in reference to
vessels engaged in commerce, and belonging to the subjects
of the other belligerent. The fourth and fifth clauses of this
proclamation are as follows :
** Fourth. Spanish merchant vessels, in any ports or places within the
United States, shall be allowed antil May 21, 1898, inclusive, for loading their
cargoes and departing from such ports and places ; and such Spanish merchant
vessels, if met at sea by any United States ship, shall be permitted to continue
their voyage if, upon examination of their papers, it shall appear that their
cargoes were taken on board before the expiration of the above term : Provided
that nothing herein contained shall apply to Spanish vessels having on board
any officer in the military or naval service of the enemy ; or any coal (except
such as may be necessary for their voyage) ; or any other article prohibited or
contraband of war ; or any dispatch of or to the Spanish government.
** Fifth. Any Spanish merchant vessel which, prior to April 21, 1898, shall
have sailed from any foreign port bound for any port or place in the United
States, shall be permitted to enter such port or place, and to discharge her
cargo, and afterwards forthwith to depart without molestation ; and any such
vessel, if met at sea by any United States ship, shall be permitted to continue
her voyage to any port not blockaded."
In the case lastly referred to, it appeared that the Panama^
pursuant to contract with the Spanish Government for carrying
( 3t8 )
the mails, was armed with five cannon, some rifles and ammunition.
The cannon had been on board over three years, the rifles and
ammunition over two. She was constructed with a view to possible
use in war. The Court held that these circumstances brought her
within the language of the proviso contained in the fourth clause
of the proclamation. This derision is of general importance.
The principal maritime nations of the world have contracts with
the owners of steamships, similar to those which the Spanish
Government had with the company to which the Panama
belonged. If this decision should be adopted by other nations, it
will take all such vessels out of the protection given by proclama-
tion to vessels sailing from or bound for the ports of one
belligerent at the time of the outbreak of hostilities. It is obvious
that if any other construction were to be adopted, vessels of the
character referred to could enter their home port and might
become of essential assistance to the belligerent owning such port.
In point of fact, during the Spanish war, two vessels belonging
to the American Line were taken by the United States Govern-
ment, converted into auxiliary cruisers, and rendered important
services during the progress of hostilities.
In another case arising under the same proclamation, that of
the Buena Ventura^ it was held that the proclamation, although
not issued at the very beginning of the war, was retroactive, and
exempted from capture vessels which were within its terms at the
beginning of the war, although they were captured before the
proclamation was issued. In this case the seizure was made
April 22, 1898, and the proclamation was not issued until
April 26, 1898. The ultimate destination of the steamer was
Rotterdam, but her immediate destination was Norfolk, Virginia,
in the United States, to take in coal.
On the other hand, in the Pedro ' and the Guido ^ the Court
held that the fact that the ultimate destination of the captured
vessel was a port in the United States would not exempt her
» 175 United States Reports, p. 384.
* 175 United States Reports, p. 354.
* 175 United States Reports, p. 382.
( 319 )
from capture, provided her immediate destination was an enemy's
port
In the case of the Pedro^ the steamer sailed from Havana for
Santiago on the 2 and of April. Her ultimate destination was
Pensacola. But it was held by a majority of the Court that the
doctrine of a continuous voyage did not apply to this case, and
that while it was true that the Pedro would have been exempt had
she sailed from Havana direct for Pensacola, yet the fact of her
sailing for Santiago put her without the pale of the proclamation,
and subjected her to capture as enemy's property. In this case
four of the justices dissented.
In the Guido the proof was less dear of ultimate intention to
go to a port within the United States. The same rule was
applied as in that of the Pedro. Three of the justices dissented.
7. Liens for Advances by Neutrals on Efiemfs Cargo.
In the Carlos F, Roses^^ a Spanish barque was captured
at sea on her course to Havana. The cargo was consigned
to Spanish subjects in Havana by citizens of a neutral state.
The Court held that, on the evidence, when the goods were
delivered to the vessel they became the property of the con-
signees. Indeed no claim to the proceeds of the cargo was
interposed by the consignors. A claim was interposed by bankers
in England who had made advances upon the caigo, and had
received as security therefor the bills of lading duly endorsed in
blank. The consignors drew drafts upon the British bankers for
the amount of the advances, which drafts were paid by them.
The Court held that there was not sufficient evidence that it was
the intention of the consignors to vest the title to the cargo in the
drawees of the bills. No evidence was introduced as to the real
nature of the transaction, and the bills of lading were not
produced by the drawees. It was evidently the opinion of
the Court that the bankers probably had some other indemnity,
177 United States Reports, p. 655.
( 3*0 )
and it was held that the mere fact that bills of lading en-
dorsed in blank were forwarded to the bankers, accompanying
the bills of exchange drawn upon them, did not operate to
vest the title in the drawees. Two justices of the Court
dissented upon this latter point, and held that the documentary
evidence, in the absence of contradiction, established that
the title to the cargo vested in the neutral, and that there-
fore it was not lawful prize, so far at any rate as his interest
to the extent of his advances was concerned. The earlier
decisions were approved, to the effect that liens of bottomry
bonds, of mortgages, and for supplies, are not protected in the
prize courts, and " that the right of capture acts upon the pro-
prietary interest of the thing captured at the time of the capture,
and is not affected by the secret liens of private engagements of
the parties." The language of Lord Stowell in the Marianna}
is quoted with approval :
'* Even if bills of lading are delivered, that circumstance will
not be sufficient unless accompanied with an understanding that
he who holds the bill of lading is to bear the risk of the goods as
to the voyage, and as to the market to which they are consigned."
Summaty,
To sum up the result of these decisions, we may say that the
rule of the American Courts upon the subjects covered by them
is as follows :
1. In the case of a neutral captured near a blockaded port,
proof of actual intent to run the blockade must be clear and
decisive.
2. A blockade may be effective, though carried on by one
armed cruiser only.
3. A blockade de facto may be established by a naval com-
mander without express authority from the Executive. Knowledge
of such a blockade is equivalent to formal notice of a blockade
* 6 C. Robinson Reports, p. 24.
( 3" )
dejure. Sailing from a neutral port bound for a port where such
a blockade de facto is maintained, subjects the neutral vessel to
forfeiture, though there be no actual intent to run the blockade.
4. Where one nation intervenes in domestic insurrection and
takes sides with the insurgents, mercliantmen belonging to the
insurgents will nevertheless be considered as enemy's property.
5. Fishing boats engaged solely in domestic fishery are exempt
from seizure as prize of war.
6. Mail steamers, as such, are not exempt from seizure as
prize of war.
7. Proclamations allowing vessels belonging to one belligerent,
to sail either from or for the ports of the other belligerent, will be
liberally construed, and if issued after the commencement of
hostilities, will be considered to relate back to the beginning of
the war. But they will not extend to vessels which are adapted
for use in warfare under contract with the belligerent government ;
although in point of fact they never have been so used.
8. When cargo consigned to an enemy is captured on an
enemy's vessel, title in a neutral claimant will not be sufficiently
established by proof that he had made advances for the purchase
of the cargo, and has paid drafts drawn on him for the amount of
the advances, which drafts were accompanied by bills of lading
endorsed in blank.
It is hoped that this statement of the decisions of the United
States Supreme Court during the war with Spain, now fortunately
terminated, will be of interest, not only as throwing light upon the
law of prize, but as illustrating the gradual evolution and develoj)-
ment of international law. To a greater extent than any other
body of law, international law is the result of the usage of nations.
No parliament of the world has yet assembled. The nearest
approach to this is to be found in the conferences that meet from
time to time, and which have recommended for adoption by the
nations composing them, certain modifications of the customary
law as it had been previously understood to exist. The law of
nations, however, is composed to a much greater extent of the
results of usage than it is of the Conventions of International
V
( 322 )
Conferences. It follows of necessity from the very nature of
usage that it is subject to modification, as the conditions which
gave rise to it themselves are changed.
A remarkable illustration of this is to be found in the case of
cartel ships. During the wars with Napoleon, it was held by the
English Courts that such ships were exempt from capture, although
they belong to one of the belligerents. In the DaiffU^ Lord
Stowell says :
"The question is whether, from the circamstances under which they were
taken, they (cartel ships) are to be considered under the protection of that
character or not. It is a practice of no very ancient introduction among the
states of Europe to exchange prisoners of war in this manner ; it has succeeded
to the older practice of ransoming, which succeeded to the still more ancient
practice of killing, or carrying them in captivity. I say it is a practice of no
remote antiquity, because, on looking into Grotius, I find not a word of
exchange in the sense in which we are now speaking of it. It is a practice, there-
fore, which, at least as far as his writings seem to indicate, was not of very
familiar and general use in his time, though perhaps not altogether unknown.
It is, however, of a nature highly deserving of every favourable consideration,
upon the same principles as are all other commercia belli, by which the violence
of war may be allayed, as far as is consistent with its purposes, and by which
something of a pacific intercourse may be kept up, which in time may lead to
an adjustment of differences, and end ultimately in peace.''
A clear statement of other changes in the law of prize which
have gradually developed as nations have become more civilised,
and the usages of war more humane, is given by the Supreme
Court in its judgment in the case of the Paqucte Habana: '
** By the practice of all civilised nations, vessels employed only for the
purposes of discovery or science are considered as exempt from the con-
tingencies of war, and therefore not subject to capture. It has been usual for
the government sending out such an expedition to give notice to other powers ;
but it is not essential, (i Kent, com. 91, note ; Ilalleck, chap, ao, sect. 22 ;
Calvo, sect. 2376; Hall, scci. 138.)
**In 1813, while the United Slates were at war with England, an American
vessel on her voyage from Italy to the United States was captured by an
English ship, and brt)uglu into Halifax, in Nova Scotia, and, with her cargo,
condemned as lawful prize by the Court of vice-admiralty there. But a
petition for the restitution of a case of paintings and engravings which had
3 C. Robinson, pp. 139, 140.
175 United Slater Kcporl.s, p. 677.
( 3^3 )
been presented to and were owned by the Academy of Arts in Philadelphia,
was granted by Dr. Croke, the Judge of that Court, who said : ' The same
law of nations, which prescribes that all property belonging to the enemy shall
be liable to confiscation, has likewise its modifications and relaxations of that
rule. The arts and sciences are admitted, amongst all civilised nations, as
forming an exception to the severe rights of warfare, and as entitled to favour
and protection. They are considered, not as the pecolium of this or of that
nation, but as the property of mankind at large, and as belonging to the
common interests of the whole species.* And he added that there had been
' innumerable cases of the mutual exercise of this courtesy between nations in
former wars.' The Marquis de Sowunuta^ Stewart Adm. (Nova Scotia),
pp. 445, 482.
" In 1861, during the war of the Rebellion, a similar decision was made in
the District Court of the United States for the Eastern District of Pennsylvania,
in regard to two cases of books belonging and consigned to a university in
North Carolina. Judge Cadwalader, in ordering these books to be liberated
from the custody of the marshal and restored to the agent of the university,
said : < Though this claimant, as the resident of a hostile district, would not
be entitled to restitution of the subject of a commercial adventure in books, the
purpose of the shipment in question gives to it a different character. The
United States, in prosecuting hostilities for the restoration of their constitutional
authority, are compelled incidentally to confiscate property captured at sea, of
which the proceeds would otherwise increase the wealth of that district. But
the United States are not at war with literature in that part of the territory.*
He then referred to the decision in Nova Scotia, and to the French decisions
upon cases of fishing vessels, as precedents for the decree which he was about
to pronounce ; and he added that, without any such precedents, he should have
had no difficulty in liberating these books. The Amelia^ 4 Phila., p. 417.**
These changes in the usages of nations naturally first become
known to the Executive Department of Governments. In the
nature of the case the Executive is more flexible in its action than
the judiciary. The respect which is paid to precedent may differ
in different nations. But the tendency in every nation is that an
organisation of a permanent character will adhere to its traditions.
In civilised countries no organisation is more permanent than
courts of justice. In none is the disposition to adhere to tradition
or precedent stronger. The danger is that Courts will adhere too
closely to traditions, and that the law will thus tend to crystallise
and become rigid. A wise system of law, however, should be
flexible, and grow with the growth of nations. To use the lan-
guage of Prof. Lawrence, of the University of Cambridge
(" Principles of International Law," preface) :
V a
( 324 )
*' International law may be regarded as a living organism,' which grows
with the growth of experience, and is shaped in the last resort by the ideas and
aspirations current among civilised mankind/'
The same is true of other branches of the law. In reference
to equity jurisprudence as administered in the Court of Chancery,
Lord Chancellor Cottenham says : ^
" I think it the duty of this Court to adapt its practice and course of
proceeding to the existing state of society, and not by too strict an adherence
to forms and rules, established under different circumstances, to decline to
administer justice, and to enforce rights for which there is no other remedy.
This has always been the principle of this Court, though not at all times
sufficiently attended to."
Chief Justice Gibson, an eminent American jurist, delivering
the judgment of the Supreme Court of Pennsylvania, uses the
following language : *
'* It is one of the noblest properties of this common law that instead of
moulding the habits, the manners and transactions of mankind to inflexible
rules, it adapts itself to the business and circumstances of the times, and keeps
pace with the improvements of the age."
The great benefit to be derived from the meetings of associa-
tions like that to which I have the honour to present this paper,
is that they stimulate in the bar the disposition to study the
principles which underlie systems of law, to recognise the
legitimate development of those principles from generation to
generation, and thus in their discussions before their respective
Courts, to do their part to promote the advance of jurisprudence.
It is a misfortune to any nation when this growth ceases. For-
tunate indeed is that country whose Courts are so enlightened as
to hold the happy mean between that fickle temper which is
destructive of stable institutions, and that ultra-conservatisna
which deprives a nation of the unspeakable benefit of a system of
law adapted to its needs and growing with its growth.
The President informed the Conference that the Vice-
President FOR Japan had presented to the Association a copy
' Walworth ». Holt, 4 Mylne & Craig, pp. 619, 635.
' Lyle V. Richards, 9 Sergt. & Rawle (Penn.), p. 322. Sec also Holden v.
Hardy, 169 United States ReporU, pp. 366, 385, 388.
( 325 )
of his work, entitled ''Cases on International Law occurring
during the war between China and Japan."
The Conference rose for the day at 12.30 p.m.^
FOURTH DAY.
The Conference reassembled at 10.30 a.m. under the presidency
of the President.'
The Minutes of the previous day's Conference were read by
Mr. Alexander, and confirmed.
The President announced that he had that morning received
the following letter from M. Louis Franck, Secretary of the
Comit^ Maritime International :
'• M. le President : Je regrette vivement d'etre emp^chd de me
rendre k la Conference de Rouen. J'avais esp<fr^ jusqu'au dernier
moment pouvoir partir hier, mais je me trouve emp^ch^.
" Le Comit^ m'avait pri^ d'apporter tous scs vocux k votre
grande association.
•* J'ajoute que le Comit^ international adresse ses sentiments de
sjrmpathie k votre association qui lui a prSt^ son appui."
Mr. Alexander announced that he had received a telegram
from M. Laroche, former French Resident in Madagascar,
regretting his inability to be present.
At the invitation of the President, the Hon. Robert Benedict
took the chair.
THE importance OF USING TERMS OF NAVIGATION IN THE
SAME SENSE IN ALL COUNTRIES.
M. Deshayes : Gentlemen, as President of the Society of the
Seine, in regard to which I read a paper to you the other day,
' The members of the Conference attended a garden-party given by
Madame Waddington in the afternoon at Chftteau St. Leger and at a reception
given by M. le Prefet at the Hdtel de ViUe in the evening.
' The members of the Conference had previously been the guests of the
Chamber of Commerce of Rouen in an excursion to view the port.
( 326 )
and in the name of the maritime people here, allow me to thank
you most sincerely for the excursion you have taken this morning
in the Port of Rouen. You have seen for yourselves that big
vessels can come in here. Allow me, further, to say that I am
informed by the chief pilot that in July last a tank steamer from
America came in here with 24 feet 3 inches draught of water,
which shows what we have here in the shape of a port.
As President of the said Society a few years ago, I remarked
how many collisions were taking place in the world, and I am
convinced that the cause is that there is no uniform way of
ordering the steering of vessels. We wrote to the Minister of
Marine on the subject, and I have made a translation of that
letter, which I will read to you, and which will show how the
matter stands.
To THE Minister of the Marine, Paris.
Sir, — Our society, at a meeting held on the 22nd February last, considered
the subject of the manner of steering vessels and the way orders are trans-
mitted to the man at the wheel by the different nations. It is the custom for
some to issue orders to starboard to bring the ship*8 head to port ; that is :
starboard the helm and not the ship. Our merchant service do the contrary ;
conunanding starboaid to bring the ship to starboard, or in other words, star-
board the ship and not the helm.
Certain countries have no fixed rules, which means that there is no unifotm
mode recognised by the different nations ; consequently as seamen of all
countries serve under any flag, they can be easily confused, as also the officer
in command. Taking thb state of things into consiaeratiun, we fear that this
general confusion is the cause of many accidents often remaining unexplained.
Moreover, certain ships have direct steering gear, whereas others have
reversing gear, which is a new anomaly in the general situation.
When the pilot takes over the charge of a vessel his first preoccupation
should be to ascertain in what way the ship answers to the helm, and not to
adopt the French custom of issuing orders to the man at the wheel when on
board of a foreigner.
We are of opinion that there are grounds for an international understanding
on this subject, and our syndicate has the honour of transmitting to you the
following resolutions adopted unanimously : —
(i) The man at the wheel should always bring the ship's head round in the
direction commanded; for example, if ordered to starboard, the
ship's head should be brought to starboard ; the same principle to
apply to the command to port (which is the French regulation).
(M) As steering is now done by wheel and not in the old-fashioned way, we
are of opinion that all steering gear should be of the reversing
( 327 )
system. If this were aduptcU the wheel would turn in the same
direction as the course of the >hip.
llie adoption of our demand would perfect two things of importance, and
that would be the movement of the ship and the wheel in the same direction.
We hope, sir, that you will kindly give this matter your attention, and that it
will be possible to have it approved of by the interested nations. You would
thus render another seivice to shipping in general and likewise to humanity, as
every effort should be made to avoid collisions. With our anticipated thanks,
I am, yours respectfully,
KrNKST DKStfAVES,
PrfsUenU
Allow me to say also that last week a congress was held in
Paris called the International Marine Congress, and I was glad
to find that a resolution was passed by them, in the terms of the
resolution I am asking you to take, which affirms exactly what
we desire.
A short time ago an accident took place in our river, when a
ship at anchor was run into by another ship. In another case one
steamer ran into another in the same way in daylight. Con-
sequently there are many collisions occurring throughout the world,
and I hope, gentlemen, you will agree to the resolution I submit
to you as to the necessity of having a uniform mode of steering
for all nations.
The Chairman : What is the resolution you submit on that
point?
M. Deshayes : The resolution is in the letter we wrote to the
Minister of Marine, and I will repeat it: " (i) The man at the
wheel should always bring the ship's head round in the direction
commanded. For example, if ordered to starboard the ship's
head should be brought to starboard. The same with regard to
port" When any French pilot, captain, or officer says " star-
board," it means the ship.
Sir Walter Phillimore : We require a definite motion which
we can support, and I shall be glad to second it. The steersman
always brings the helm in the direction commanded ; he always
obeys his orders, and therefore he brings the helm in the direction
commanded.
( 3^8 )
M. Deshayes : The French order relates to the direction given
to the head of the ship.
M. le PRfesiDENT : Pourriez vous nous dire, M. Deshayes, quel
est I'usage le plus rdpandu dans le monde comme commandement
sur eau ?
M. Deshayes : Le plus r^pandu est de porter la barre h, droite
pour faire aller le navire k gauche et la barre k gauche pour faire
a Her le navire k droite.
N*y aurait-il pas int^ret k passer un vceu analogue k celui pro-
pose pour la marine marchande, pour qu*un commandement
uhiforme soit adopts ? Ne serait-il pas meilleur d'etre en presence
de personnes ayant des connaissances techniques semblables ?
M. Farvult, chef du service de pilotage de la Seine : Je me
joins k M. Deshayes et je crois qu'il serait bon qu'un seul mode
de commandement soit adopts. La confusion va se continuer
encore trhs longtemps.
The Chairman : I have prepared a resolution on this point
which I will read : " Resolved, that in the view of this Association
it is very desirable that the same method should be adopted by all
maritime nations as to the mode of steering vessels and of orders
to the wheelsman, namely, that when the order is given to the
wheelsman to * starboard * or to * port,' it should be always under-
stood to be an order to turn the head of the ship in the direction
named ; and resolved, further, that such a mode of construction of
steering gear as will conform to this rule should be, so far as
possible, adopted in the building of ships."
Sir Walter Phillimore : I would suggest the words " as will
make conformity easy." They always conform to the rule by
working the gear the contrary way.
The Chairman : I want the resolution to carry out the idea
that the order to the wheelsman, when " starboard," shall mean
not only bring the ship's head to starboard, but also turn the
wheel to starboard.
Sir Walter Phillimore : I quite appreciate that, but if you
( 329 )
read your words again, I think you will see they do not quite
express it.
The Chairman : " And that such a mode of construction of
steering gear as will confonn to this rule."
Sir Walter Phillimore : Anything will confonn to the rule
" as will make conformity easy." You mean make conformity to
this rule easy.
The Chairman : Supposing we put it this way : Whenever the
order is given to the wheelsman to starboard, it should be under-
stood to be an order to turn both the wheel and the head ot
the ship.
Sir Walter Phillimore and M. Deshayes agreed to this.
The President : " And that all steering gear should be adapted
to this result."
The Chairman : I will read it again : " Resolved, that in the
view of the Association it is very desirable that the same method
should be adopted by all maritime nations as to the mode of
steering vessels and of orders to the wheelsman, namely, tnat
when the order is given to the wheelsman to ' starboard ' {tribord)
or to ' port ' {b&bord) it should be understood to be an order to
turn both the wheel and the head of the vessel in the direction
named. Resolved also, that such a mode of construction of
steering gear as will be adapted to produce this result should be,
so far as possible, adopted in the buildmg of vessels."
M. Deshayes read the resolution in French, as follows :
^association decide qu'il est desirable que la m^me m^thode
de commandement soit adoptee par toutes les nations maritimes
concemant le mode de gouvemer les navires.
Par exemple, quand un ordre sera donn^ k Thomme de barre
dialler k tribord ou ^ bibord cela devra indiquer que non seule-
ment il devra aller dans cette direction mais qu'encore il devra
tourncr dans le mdme sens. £t que dans la transformation du
( 330 )
materiel le gouvernail soit adopts de maniere k produire
cette voie.
The resolution was seconded by the President, put, and
carried unanimously.
M. Deshayes : Many thanks, gentlemen, for passing this
resolution, which is a useful resolution for humanity, because
there are many accidents caused and lives lost on account of
misunderstanding the regulations.
Sir Walter Phillimore on behalf of the Executive Council
proposed the election of Prince Cassano, M. Georges Mara is,
and Mr. H. Laroche, as members of the Association ; and these
gentlemen were duly elected.
The following paper was presented to the Association by
Prince Cassano and was agreed to be referred to the Executive
Council.
De la Nationality des Sociferfis par Actions.
La nationality d'une Soci^t^ par actions est utile k connaitre
pour diverses raisons, notamment :
Pour savoir quelles sont les lois qui r^gissent sa constitution et
son fonctionnement intdrieur;
Pour dtablir le regime fiscal devant lui ^tre appliqud, dans les
pays oU elle est appeide k faire des operations en dehors de son
lieu d'origine ;
Pour voir quels tribunaux peuvent prononcer sa faillite ou sa
liquidation judiciaire.
Cette question a dte agitee en maintes circonstances, elle a fait
Tobjet d'dtudes varices en France et k Tdtranger, elle revient
souvent devant les tribunaux, mais elle n'est pas rdsolue et parait
loin de Tetre. En effet^ les avis sont partagds et les solutions
auxquelles on s*est arr^td sont en gdndral ambigues et quelquefois
draconiennes. II y aurait d'ailleurs tout un code k rediger sur la
mati^rc et je mc pcrmcts d'en signaler Timportance k VAssociation,
( 33' )
persuade qu'elle saura s*ea acqaitter pour le plus grand bien de
rhumanit^.
Ce mot n'est pas excessif, car les Soci^t<^s se substituent de
plus en plus aux hommes et les erreurs d'appr^ciation dont celles-
Ik sont victimes ont (les effets encore plus graves que lorsqu*clles
atteignent les individus, car elles font ressentir leur contre-coup k
un plus grand nombre de personnes.
AinsL que le faisait si justement observer M. Louis Renault au
Congrbs International des Soci^t^s par actions, tenu 2t Paris en
1889, dans la plupart des pays le I^gislateur a laissd k peu pxhs
la meme latitude au sujet de ce qu'il y avait k decider sur la ques-
tion de savoir ce que c'est qu'une Society nationale et ce que
c'est qu*une Socidt^ ^trangfere.^
La situation n'a pas chang^ depuis et sauf la Belgique et
ritalie aucun pays ne pr^voit dans ses lois le cas d'une Soci^t^
^trangbre fonctionnant chez lui, exception faite pour les Com*
pagnies d'assurances. L'article 129 de ia loi beige de 1873 est
ainsi con^u :
" Toute Soci^te dont le principal ^tablissement est en Belgique
e^t soumise k la loi beige bien que I'acte constitutif ait dte passd
en pays Stranger." L'article 230 du Code de Commerce Italien,
dans lequel se trouvent incorporfe toutes les dispositions Idgales
en madfere de Society, dit dans son second alin^a ; " Les Soci^t&
constitutes en pays Stranger qui ont dans le royaume leur si^ge
et Tobjet principal de leur cntreprise sont considdrdes comme
Soci^tds nationales et sont soumises aussi pour la forme et la
validity de leur acte constitutif, bien que stipuld en pays granger,
h toutes les dispositions du present Code."
On a dit que le sens de la loi beige n'<^tait pas de donner k une
Soci^t^ dtrangfere la nationality beige, mais seulement de la
soumettre aux lots bdges^ sans toutefois indiquer les limites de
cette soumission. Cependant, si Ton met en regard de Tarticle
* V. CoDgr^ International des Societes par actions tenu it Paris du 12 au
17 Aodt 1889. Compte-rendu stcnographique (Paris, Aithur Rousseau, 1890),
p. 198.
( 332 )
dej^ cite celui qui le suit imm^diatement on se rend compte que
les lois beiges devraUntoM tout au mdm^ pourraietit ^tre appliques
dans leur integrality ^ une Socidt^ ayant son principal ttablissc
irnnt en Belgique, L'article 130 dit ceci :
^' Les articles relatifs k la publication des actes et des bilans
et I'article 66 sont applicables aux Societ^s ^trangferes
qui fonderont en Belgique une succursale ou un si^ge
quelconque d*uperation,
"Les personnes prepos^es k la gestion de r^tablissement
beige sont soumises k la m^me responsabilit^ envers les
tiers que si elles g^raient des Soci^tifs beiges."
Or, si Tarticle 129 ne doit pas viser Tessence m^me de la
Societ(f, c'est-k-dire les conditions dans lesquelles elle a ^t^
constitute et fonctionne, il fait double emploi avec le suivant,
car celui-ci s*occupe de tout ce qui regarde Tordre public Et le
rapporteur de la loi, M. Pirmez, disait 2l la Chambre des repr^-
sentants : " Quand une Socidtd a son principal dtablissement dans
un pays, n'est-ce pas ce pays, n'est-ce pas la loi sous la protection
de laquelle elle vit et fonctionne, qui doit la r^gir plutot qu'une
loi t^trang^re sous laquelle un accident ou une fraude Fa fait
naitre?"
Je reviendrai plus loin sur le mot '* fraude." Pour le moment
j'examinerai le moi **rdgit" employ^ k dessein par M. Pirmez.
Cela ne peut dire que la Socidttf doit se con former k la loi beige
seulement pour ce qui regarde ses operations et son fonctionne-
ment en Belgique. Je le rdp^te, Tarticle 130 s*occupe de cela et
il va meme trbs loin, puisqu'il oblige la Socidtt^ ^trangbre k suivre
toutes les prescriptions impos^es aux Soci^t^s beiges relativement
k la publication de ses statuts et de ses bilans. De plus, cet
article I'oblige k se conformer k la disposition de Tarticle 66, qui
est ainsi con^u : " Dans tous les actes, factures, annonces,
publications, et autres pibces dmandes des Socidt^s Anonymes
on doit trouver la denomination ^Socidte* pr^c^d^e ou suivie
immediatenient de ces mots dcrits lisiblement et en toutes lettres :
Socitte Anonymc. Si les pieces ci-dessus indiquees enoncent Ic
( 333 )
capital social, ce capital devra 6tre celui qui rtfsulte du dernier
bilan."
De sorte qu'une Socidt^ allemande apr^s les mots Actien-
GeseUschafty qui signifient en somme " Socidt^ Anonyme," devrait
r^p^ter les deux mots en fran^ais. £t si une Soci^t^ fr^tn^aise
dont le capital nominal est presque toujours indiqu^ sur ses
publications et sur son papier fait des operations en Belgique,
elle doit avoir des publications et du papier special \ la Belgique,
si son capital n'est pas entiferement vers^.
M. Pirmez voulait bien dire que la Soci^t^ se trouvant dans le
cas pr^vu par Tarticle 139 devait se conformer \ toutes les dis-
positions de la loi beige, notamment elle devait 6tre form^ par
des actes publics i peine de nullitk (Article 4) et elle devait avoir
tout son capital souscrit et un dixi^me vers^ (Article 29). Par
consequent, une Socitft^ fran^aise pour laquelle Tacte public n*est
pas exige et une Soci^t^ anglaise qui peut etre form^e sans que
son capital ait ^t^ souscrit ni offert d la souscription^ pourraient
^tre d^clar^es nuUes si leur principal ^tablissement se trouvait en
Belgique.
On peut done en conclure que les lois en Italie et en Belgique
admettent Tassimilation des Societ^s ^trangbres aux nationales
lorsque le but principal de leur exploitation se trouve dans le
royaume. Dans beaucoup d'autres pays les lois sont muettes au
sujet des Soci^t^s ^trangbres; dans d'autres enfin, tels que la
Russie, le Japon, etc., elles doivent obtenir une autorisation
avant de faire des operations.
Reste k examiner la jurisprudence et la doctrine.
Hors de France peu nombreux sont les cas oU des Soci^tfe ont
il€ dedar^es nationales quoique formees k retranger. C'est le
contraire qui a lieu notamment Ik ob une autorisation prdalable
est ndcessaire pour ester en justice. Mais en France, la preoccu-
pation du magistrat paratt ^tre celle de savoir si la Soci^te est
positivement dtrangfere, ou bien si elle 2. frauduleusement assume
cette qualite pour echapper k la loi fran^aise.
Une fois que la fraude est en jeu, il n'y a plus de raison de
s'arr^ter et c*est ainsi que Ton a vu des Socictds regulierement
. ( 334 )
constitutes en Angleterre et en Belgique d^clar^es fran^aises et
partant annul^es pour inobservation k la loi dc 1867.
Pr^occup^e de cet ^tat de choses, la Commission d'Organisa-
tion du Congrfes International des Soci^tds par actions de 1889
avait mis k I'dtude la question de la nationality et avait propose le
texte suivant :
''La nationality d'une Soci^t^ par actions sera d^termin^e
par la loi du lieu 011 Facte constitutif aura ^t^ passe,
n^anmoins la Soci^t^ sera soumise k la loi du pays oil
elle aura son principal ^tablissement"
Aprfes une longue discussion le Congrfes adopta une resolution
ainsi con^ue :
" Toute Socidt^ a une nationality
**La nationality d'une Soci^t^ par actions sera d^terrain^e
par la loi du lieu oU elle aura 6t6 constitute et oh elle
aura fix^ son si^ge social.
** Le sidge social d'une Soci^t^ ne peut ^tre que dans le pays
oh elle aura 6t6 constitute."
Ce texte avait le m^rite de supprimer totalement le principal
^tablissement comme dement constitutif de la nationality de la
Soci^td et empruntait aux Sections 39 et 74 du Companies
Acfj 1862, les dispositions relatives k Tenregistrement et au choix
du si^ge social.
Malheureusement cettc formule ne fut pas prise en considera-
tion et plusieurs arrets rendus tout rdcemment paraissent Favoir
ignor^e.
Par contre un nouveau Congrfes International des Socidt^s par
actions tenu en juin dernier a votd la resolution suivante :
" La nationality d'une Socidte par actions doit ^tre determinee
par le pays ou elle a son principal dtablissement ou par
le pays de son siege social re^i fixe par les statuts."
Ainsi Ic dernier Congrfes admet tout d'abord Ig choix entre le
principal etablissement et le siege social, ce qui laisse la porte
( 335 )
ouverte k toutes les interpretations. Dc plus, il veut que le si^ge
social soit rdel, ce qui permet toutes les contestations. En
somme, il ne rdsout pas la question.
II est k remarquer, et je n'ai pas besoin d'insister Ik-dessus, que
cette question de la nationality int^resse non seulement les
actionnaires obligataires et administrateurs d'une Soci^t^, mais
aussi le public. En efTet, s'il est utile aux premiers de savoir k
quel tribunal ils doivent s'adresser pour trancher leurs diff<frends,
le second a besoin de connattre exactement quels sont les droits
et les devoirs d'une Soci^t^. Sur ce chapitre, il ne faut pas qu'il
y ait d'incertitude, car elle pent etre nuisible aussi bien k la
Soci^td qu'aux tiers.
Quant aux lois fiscales, il est Evident que les Soci^tds dtrang^res
ne doivent pas jouir d*un traitement meilleur que les Soci^t^s
nationales, mais il ne hut pas non plus que les charges du pays
oh elles op^rent viennent s'ajouter k celles qui les frappent dans
le pays d'origine. La question d'ailleurs est trfes complexe et
m^riterait une dtude sp^ciale.
Reste le regime de la faillite ou de la liquidation judiciaire dans
lequel la nationality joue aussi un role.
II est Evident que lorsque celle-ci n'est pas contest^e, les choses
s'arrangent du moins quant aux meubles, et le principe de I'dgalit^
cntre crdanciers peut 6tre en g^ndral sauvegardd Mais lorsque
la Soci^td peut ^tre rkclamk par plusieurs juridictions \ la fois les
difficult^s commencent Or, dans presque tous les pays, on admet
que la m£me personne ou la m^me Socidtd peut fitre d&larde en
faillite par plusieurs tribunaux et qu'il n'y a pas de connexit^
entre les diverses faillites. Ce n'est qu'en Belgique et en Italie
que le principe de Tunit^ et de P indivisibility de la faillite a ^td
consacrd par la jurisprudence. C'est assurdment le systfeme k
prdconiser.
En dehors des conflits de juridiction il y a aussi des difficultds
pour dtendre les effets de la faillite d'un pays k Tautre. Ainsi par
exemple, en France, il faut Texequatur et tant que celui-ci n'est
pas obtenu, le debiteur qui n'a pas fait honneur k ses engagements
peut disposer de ses biens conime il I'entend. Le syndic ou autre
( 336 )
officier minist^riel dtranger ne peut exercer ses pouvoirs que
pour des actes conservatoires. II se peut aussi que les juges
examinent Taffaire au fond et qu'ils appliquent la loi frangaise
pour les biens situds en France; "Locus regit actum." Avec
TAngleterre, par exemple, cette procedure prdsente des difKrences
tr^s grandes, car toute cession de biens au profit de la femme est
declar^e nuUe lorsqu'elle n'a pas 6t6 faite au moins deux ans avant
la declaration de faillite. En France, Teffet r^solutoire de pareils
actes ne remonte qu*k dix jours avant la cessation des paiements.
En fin, la non-nationalit^ des cr^anciers dans certains pays est
considdree comme un obstacle k Tdgalit^ de traitement dans la
repartition de I'actif.
En Autriche et en Hongrie cette dgalit^ n*est admise qu'2l titre
de reciprocity; en Allemagne elle peut ^tre refus^e par le
Chancelier de TEmpire, dCiment autorise par le Conseil Federal
Naturellement cette procedure solennelle n'est suivie que pour
les cas exceptionnels.
Voici les points fix^s par M. Lyon Caen au sujet des effets de
la faillite lorsqu'elle se poursuit dans divers pays h, la fois :
1°. Chaque faillite a son syndic ;
2°. Dans chaque faillite, il y a une procedure distincte de
verification des creances ;
3°. La date de cessation des paiements peut ^tre diiferente
dans chaque pays;
4°. La solution adoptee pour une faillite ne vaut que dans le
pays oU elle a ete admise et ainsi il peut y avoir union dans un
pays, concordat simple dans un autre, concordat par abandon dans
un troisibme ;
5°. II peut y avoir rehabilitation dans un pays pour un failli
qui n'a pas ete rehabilite dans les autres ;
6°. II y a autant de masses de creanciers que de faillites.
Mais il faut deterniiner de quels creanciers chacune des masses
se compose ; sur ce point les avis sont tr^s divergents.*
Je n*ai pas besoin d'insister sur le sujet, car ces inconvenients
* V. Bulletin du Congres International du Cummejce et de I'Industrie,
30 novcmhrc 1899, pp. 161 «l 172.
( 337 )
sont coQHus de tous les membres de TAssociatiozL Je me
bomerai k rappeler les conclusions du rapport de M. Lyon Caen
que le Congrbs International du Commerce et de I'lndustrie a
fait siennes en votant la resolution suivante :
"Consid^rant que les conflits des lois sont regrettables en
cette matifcre et portent prejudice aux transactions,
*' Le Congrfes ^met le voeu :
" Que des Conventions relatives k la faillite soient conclues
entre les Etats pour rdsoudre les difficult^ qu'elle fSadt
naltre dans les rapports internationaux."
Ces conventions devraient :
i^. Consacrer le principe de Tunit^ et de Tindi visibility de la
faillite, c'est-^-dire admettre que pour un individu ou pour une
Socidt^, un seul tribunal a competence pour declarer la faillite,
celui du domicile ou du sidge social ;
2®. Reconnattre qu'un jugement ddclaratif de faillite rendu
dans un pays produit ses effets dans les autres Etats contractants
et que Fexequatur n*y est ndcessaire que pour procdder, en vertu
de ce jugement, k des actes d'ex^cution ;
3®. Limiter le pouvoir du tribunal saisi de la demande
d'exequatur k Texamen des questions de savoir si le tribunal
qui a rendu le jugement d^claratif de faillite ^tait competent,
si ce jugement a force de chose jug^e dans le pays oU il a 6t6
rendu et s*il ne contient aucune disposition contraire k I'ordre
public ;
4**. Reconnaltre V6gB\it6 des droits des cr^anciers du failli
quels que soient leur nationality, leur domicile, leur residence, le
pays dans lequel ils ont contract^ avec le d^biteur en faillite ;
5^. R^soudre les principaux conflits entre les lois sur la
faillite.1
De cet examen forcdment sommaire on pent conclure que
Tambiguite en matifere de nationality peut 6tre suivant les cas k
Favantage ou au detriment d'une Soci^td Par consequent elle
peut etre invoqu^e tantdt par ses amis tantot par ses ennemis.
» V. Uc. a'/.
( 338 )
Dans les deux hypotheses elle donne lieu k des litiges sans fin.
dont Tissue n*est pas toujours d'accord avec F^quit^.
Une pareille incertitude ne peut pas se prolonger sans porter
atteinte aux int^rets les plus respectables et aux principes de
justice auxquels doivent ^tre conformdes les lois des pays civilises.
Prince de Cassano.
Paris, Ao^t 1900.
The Chairman: I believe, gentlemen, that that finishes the
formal business of the meeting, but it would be ungracious for us
to adjourn without votes of thanks to those who have done so
much to make our sojourn here so agreeable ; and resolutions on
this subject have been prepared.
The President proposed the following resolution :
Nous votons des remerciments pour la gdndreuse et cordiale
hospitality qui nous a 6t6 donnde par M. le Pr^fet du
D^partement de la Seine Infi^rieure, par M. Waddington,
S^nateur de ce D^partement et President de la Chambre
de Commerce, par ladite Chambre de Commerce, et
par M. le Maire et la Municipality de la Ville de Rouen.
That the thanks of this Conference for the generous and
hearty hospitality shewn to it be given to the Prefect of
the Department of the Seine Inftfrieure, M. Waddington,
Senator of the Department and President of the Chamber
of Commerce, to the Chamber of Commerce, and to the
Mayor and Municipality of the City of Rouen.
which was seconded by the Vice-President for Japan and carried
unanimously.
M. Deshaves : Gentlemen, — I am authorised and requested
by the Mayor of Rouen to thank you very much for visiting
Rouen, and I am desired to say that if ever you wish to come
back and meet here again he would be very happy to invite you.
Sir Walter Phillimore: I have pleasure in moving the fol-
lowing resolution :
( 339 )
Nous votons des remerctments k la Chambre de Commerce
de Rouen pour sa bienveillance en mettant k notre
disposition les locaux de la Chambre.
That the thanks of this Conference be given to the Chamber
of Conunerce of Rouen for the use of their buildings for
the meetings of the Conference.
The resolution was seconded by Dr. Stocquart, and carried
unanimously.
Dr. Fromageot then moved :
Nous votons des remerdments k M. le President de la
Conference, FHon. S. £. Baldwin, k M. Octave Marais,
Vice-President pour la France, k Sir John Bigham,
Vice-Prdsident pour la Grande-Br^tagne, et k THon.
Robert D. Benedict, Vice-President pour les ]6tats-Unis^
pour la manibre distingu^e et courtoise avec laquelle ils
ont remplis les fonctions de President.
That the thanks of this Conference be given to the President
of the Conference, the Hon. Simeon £. Baldwin, to
M. Octave Marais, Vice-President for France, to Sir
John Bigham, Vice-President for Great Britain, and the
Hon. Robert D. Benedict, Vice-President for the
United States, for their able and courteous conduct in
the chair.
which was seconded by Mr. Brainerd, and carried unanimously.
Dr. W. Evans Darby: I have much pleasure in moving the
following resolution :
Nous votons des remerciments k M. le Prince de Cassano, k
M. Wood Renton, k M. Stanley Metcalfe, et k tous nos
coUbgues qui ont bien voulu contribuer par leurs travaux
au succfes de cette Conference.
That the thanks of this Conference be given to Prince
Cassano, Mr. Wood Renton, Mr. Stanley Metcalfe, and
all the other gentlemen who have kindly contributed to
the work of the Conference.
Z 2
( 340 )
The resolution was seconded by Dr. Stoddard and carried
unanimously.
The Chairman : With this, gentlemen, closes this meeting of
the International Law Association* I am sure that none of you
need to express anything else than what you feel in your own
hearts as to the pleasure which we have received here, and also as
to the instruction which has been given us by these debates ; and
I am sure also that we may all look forward to another meeting
at some other place and to a long succession of labours by this
Association which shall all be in the general direction of that
cause which all of us have at heart, namely, the removal of the
causes of diflferences between nations arising out of the differences
of law.
With this final remark it becomes my duty to declare that this
meeting of the Association is brought to a conclusion.
P« 21
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( 342 )
Publications received since the last Report
Correspondance bi-mensuelle of the Bureau International de la Paix.
Law Magazine and Review.
Deutsche Juristen-Zeitung.
The Peacemaker and Court of Arbitration.
The Herald of Peace and International Arbitration.
Journal du Droit International Prir^ et de la Jurisprudence comparee, redige
par Mons. ^douard Clunet.
International Tribunals : —
A collection of various schemes ^ich have been propounded ; and of
instances since 1815 ; by W. Evans Darby, LL.D.
Revue Generale de Droit International Public, redigee par Messieurs Antoine
Pillet et Paul Fauchille.
International Maritime Committee. Report of the London Conference, 1899.
Preliminary Report I. & II. of the Paris Conference (1900).
Atti dello Suto Civile, by Ernesto Fortunato.
L' Azione dell' Avvocato verso il Cliente, by Ernesto Fortunato.
II Subingresso Ipotecario, ,, ,,
Del Termine a comparire, „ „
Delia Estinzione del Mandato, „ ,,
Delia Funzione del Sequestratario, „ „
II Responsabile Civile non citato nel Giudizio Penale, by Ernesto Fortunato.
Rapports sur les Manifestations de 1899 et I9Q0» relatives It la Guerre du
Transvaal, par le Bureau International permanent de la Paix.
The Maritime Code of the German Empire, translated by W. Arnold, London.
Studi di Diritto Internazionale Privato, by Prof, the Marquis A. CorsL
Catalogue d'ouvrages sur la Paix et la Guerre, du Bureau International \ Berne.
Atti deir Associazione Nazionale di Diritto Marittimo. Agosto 1900.
The Question of Sanctions, by Dr. W. Evans Darby.
Stocquart, Dr. Emile, Avocat 4 la Cour d'appel de Bruxelles.
La Vie Judiciaire \ New York.
La Personality Juridique de la femme marine en Angleterre.
Studies in Private International Law.
Gregory, Professor Charles Noble, A.M., LL.B.
Bentham and the Codifiers.
Completion of Contracts by Mail or Telegraph.
Baldwin, Hon. Simeon £.
Jurisdiction of the Bishop of London over the American Colonial Church :
A paper read before the American Historical Association.
Aguinaldo, Don Emilio. True Version of the Philippine Revolution.
Reinsch, Paul Samuel, Ph.D., LL.B., Ass. Prof, of Pol. Science.
English Common Law in the early American Colonies. Thesis submitted
for Doctorate of Philosophy, University of Wisconsin, 1898.
Barrow, S. J. Reports prepared for the International Prize Commission.
The Undeterminate Sentences of the Parole Law.
Penological Questions.
APPENDIX A.
TRAITfi FRANCO-BELGE SUR LA COMPfeTENCE JUDICIAIRE, SUR
• l'AuTORIT£ £T L'ExfcCUTION DES DECISIONS JUDICIAIRES,
DEs Sentences Arbitrales et des Actes Authentiques.
Coftvfntion.
Sa Majesty le Roi des Beiges et le President de la R^
publique fran^aise, d^sirant r^gler les rapports entre la Belgique
et la France sur la competence judiciaire, sur Tautont^ et
I'ex^ution des d<fcisions judiciaires, des sentences arbitrates et
des actes authentiques, ont r^solu de conclure une convention ^
cet efTet et ont nommd pour leurs pl<fnipotentiaires, savoir :
Sa Majesty le Roi des Beiges—
M. le baron d'Anethan, son envoy^ extraordinaire et ministre
pl^nipotentiaire prfes le Pr&ident de la R^publique
fran9aise ;
et le President de la R^publique fran9ai.se —
Son Excellence, M. Th. Delcass^, d^put^, ministre des affaires
^trang^res,
lesquels, aprbs s'fitre communique leurs pleins pouvoirs, trouv^s
en bonne et due forme, ont convenu des dispositions suivantes :
Hire /"*. — De la comptUnce.
Art, i*^, s. I. — En matibre civile et en matibre commerciale, les
Beiges en France et les Fran9ais en Belgique sont r^gis par les
mtoes rbgles de competence que les nationaux.
S. 2. — ^Toutefois, les Beiges ne peuvent invoquer en France
Particle 14 du Code civil pour traduire d'autres Grangers devant
les Tribunaux frangais que s'ils ont dtd autoris^s par le gouveme-
( 344 )
ment franQais k ^tablir leur domicile en France, et tant qu'ils
continuent d*y insider.
S. 3. — L'article 1 5 du Code civil cesse d'etre appb'cable dans
les rapports entre Fran9ais et Beiges.
Art 2. — Si le ddfendeur n*a ni domicile ni residence en
Belgique ou en France, le demandeur Fran9ais ou Beige peut
saisir de la contestation le juge du lieu oil Tobligation est n^e, a
€\.€ ou doit 6tre ex^cut^e. Les Beiges conserveront en France les
droits que leur conftre, en matiferc coramerciale, Particle 420 du
Code de procedure civile, aussi longtemps que cette disposition
restera en vigueur.
Art, 3, s. I. — Lorsqu'un domicile attributif de juridiction a
i\.i du dans Tun des pays pour Tex^cution d*un acte, les juges du
lieu du domicile dlu sont seuls comp^tents pour connattre des
contestations relatives k cet acte.
Si cependant le domicile n'a iti du qu*en faveur de Tune des
parties contractantes, celle-ci conserve le droit de saisir tout autre
juge compdent
S. 2. — Tout induslriel ou commer9ant, toute socidt^ civile ou
commerciale de Tun des deux pays, qui dtablit une succursale
dans Tautre, est rdput^ faire Section de domicile, pour le juge-
ment de toutes les contestations concernant les operations de la
succursale, au lieu ob celle-ci a son si^ge.
Art 4, s. I. — Les Tribunaux de Tun des 6tats contractants
renvoient, si Tune des parties le demande, devant les Tribunaux
de I'autre pays, les contestations dont ils sont saisis, quand ces
contestations y sont d^jk pendantes ou quand elles sont connexes k
d*autres contestations soumises k ces Tribunaux. Ne peuvent
6tre consid^rdes comme connexes que les contestations qui pro-
c^dent de la m^me cause ou portent sur le meme objet
S. 2. — I>e juge devant lequel la demande originaire est pen-
dante connalt des demandes en garantie et des demandes re-
conventionnelles, k moins qu'il ne soit incompetent k raison de la
mati^re.
( 34S )
Art. s. — Le juge beige ou franQais, competent pour statuer
siir la demande en validity ou en main-lev^e d'une saisie-arr^t Test
Element pour connattre de Texistence de la cr^ance, k moins
qu'il ne soit incompetent it raison de la mati^re, et sauf le cas de
litispendance.
Art 6. — Toutes Ics contestations relatives \, la tutelle des
mineurs ou des interdits sont port^es devant le juge du lieu ob la
tutelle s'est ouverte.
Art 7, s, I. — Seront, dans chaque pays, ponds devant le juge
du lieu de I'ouverture de la succession, les actions en petition
d'herdditd, les actions en partage et toutes autres entre cohdritiers
jusqu'au partage, les actions contre I'exdcuteur testamentaire, les
actions en nullitd ou en rescision de partage et en garantie des
lots, les actions des Idgataires et des crdanciers contre les hdritiers
ou I'un d'eux.
S. a. — La competence relative k ces actions est limitde, en
Belgique, suivant Tarticle 47 de la loi du 25 mars 1876.
Art 8, s. I. — Le Tribunal du lieu du domicile d'un commer-
9ant, Beige ou Fran9ais, dans Tun ou Tautre des deux pays, est
seul competent pour declarer la faillite de ce commer9ant — Pour
les societds commerciales fTan9aises ou beiges ayant leur sidge
social dans Tun des deux pays, le Tribunal competent est celui de
ce sidge social.
Les commer9ants des deux nations, dont le domicile n'est ni
en Belgique ni en France, peuvent 6tre, ndanmoins, declares en
faillite dans I'un des deux pays, s'ils y possMent un dtablissement
commercial. Dans ce cas, le Tribunal competent est celui du
lieu de r^tablissement
S. 2. — Les effets de la faillite declarde dans Tun des deux pays
par le Tribunal competent, d'apr^s les rfegles qui prdcfedent, s'dten-
dent au territoire de Tautre. Le syndic ou le curateur peut, en
consequence, prendre toutes mesures conservatoires ou d'adroinis-
tration, et exercer toutes actions comme reprdsentant du failli ou
de la masse. II ne peut toutefois procdder k des actes d'exdcution
qu autant que le jugement en vertu duquel il agit a etc rev^tu de
( 346 )
I'exequatur, conformdment aux regies ddictdes par le titre II ci-
aprbs. Le jugement d'homologation du concordat, rendu dans
Tun des deux pays, aura autorit^ de chose jug^e dans Tautre et y
sera ex^utoire d'apAs les dispositions du m^me titre II.
S. 3. — Lorsque la faillite i\6diax6t dans Tun des deux pays
comprend une succursale ou un ^tablissement dans Tautre, les
formality de publicity exigdes par la legislation de ce dernier pays
sont remplies, k la diligence du syndic ou du curateur, au lieu de
cette succursale ou de cet dtablissemeni.
S. 4. — Les sursis, concordats prdventifs ou liquidations judici-
aires, organises par le Tribunal du domicile du d^biteur dans Fun
des deux l^tats, s'^tendent, dans la mesure et sous les conditions
ci-dessus specifies, au territoire de Tautre 6tat
Art 9. — Les mesures provisoires ou conservatoires organist
par les legislations fran9aise et beige peuvent, en cas d'urgence,
^tre requises des autorit^s de chacun des deux pays, quel que soit
le juge competent pour connaltre du fond.
Arf. 10. — Pour tous les cas oil la pr^sente convention n'^tablit
pas de regies de competence commune, la competence est regiee
dans chaque pays par la legislation qui lui est propre.
Tl^e //. — Dg rautoritk et de texkcuHon des decisions judidaires^ des
sentences arbitrcUes et des actes authentiques.
Art. II. — Les decisions des Cours et Tribunaux rendues en
matibre civile ou en matibre commerciale dans Fun des deux
i^tats, ont dans Tautre Tautorite de la chose jugee, si elles reunis-
sent les conditions suivantes :
I** Que la decision ne contienne rien de contraire k Tordre
public ou aux principes du droit public du pays oh elle est invo-
quee;
2» Que, d'aprfes la loi du pays ob la decision a ete rendue, elle
soit passee en force de chose jugee ;
3* Que, d'aprfes la m^me loi, Texpedition qui en est produite
reunisse les conditions necessaires k son authenticite :
( 347 )
4'' Que les parties aient t^te l<fgalement citees, repr^sentt^es ou
d^clardes d^faillantes ;
S"* Que les regies de competence rendues communes aux deux
pays par la convention n'aient pas 6x6 m^connues.
Arf, 12. — Les decisions des Cours et Tribunaux rendues dans
Tun des deux £tats peuvent dtre mises k execution dans I'autre
£tat, tant sur les roeubles que sur les immeubles, apr^s y avoir ^t^
dArlar^es ex^utoires. — Les decisions beiges rendues executoires
en France n*y entraineront pas hypothfeque judiciaire.
L'exequatur est accord^ par le Tribunal civil du lieu oil Tex^
cution doit dire poursuivie. II a effet dans toute I'^tendue du
territoire.
I^ Tribunal saisi de la demande d'ext^cution statue comme en
mati^re sommaire et uigente. Son examen ne porte que sur le»
points dnumer^s dans Tarticle pr^cddent
Arf, 13. — En accordant Texequatur, le jugc ordonne, s'il y a
lieu, les mesures n^cessaires pour que la decision dtrangfcre regoive
la m^me publicity que si elle avait 6t6 prononc^e dans les
ressorts 011 elle est rendue ex^cutoire.
Arf. 14. — Le jugement qui statue sur la demande d'exequatur
n'est pas susceptible d'opposition. II pent toujours 6tre attaqu^
par la voie de I'appel dans les quinze jours qui suivent la significa-
tion k partie. Uappel est jug^ sommairement et sans procedure.
Ar/, 15. — Les sentences arbitrales rendues dans Tun des
deux ]^tats ont dans I'autre I'autoritd de la chose jug^e, et peuvent
y dtre rendues executoires, si elles satisfont aux conditions exig^es
par les n" i, 2, 3 et 4 de Tarticle 11.
Uexequatur est accord^ par le president du Tribunal civil de
Tarrondissement dans lequel rex^cution est poursuivie.
Arf. 16. — Les actes authentiques executoires dans Tun des
deux pays peuvent 6tre declares executoires dans Tautre par le
president du Tribunal civil de Tanondissement oil I'execution est
demandee.
Ce magistrat veriiie si les actcs ^ rcunissent les. conditions
( 348 )
n^cessaires pour leur authenticity dans le pays oh ils ont 6t6 veqvLS
et si les dispositions dont Tex^cution est poursuivie n'ont rien de
contraire k Tordre public ou aux principes de droit public du
pays oil Texequatur est requis.
Art 17. — Les hypothfeques consenties dans Tun des deux
pays n'auront d'effet k regard des immeubles situ^s dans Tautre
que lorsque les actes qui en contiennent la stipulation auront ^t^
rendus ex^utoires par le president du Tribunal civil de la situa-
tion des biens.
Ce magistrat vdrifie si les actes et les procurations qui en sont
le complement rdunissent toutes les conditions n^cessaires pour
leur authenticity dans le pays oh ils ont 6t6 re9us.
Ar/. 18. — Dans les cas pr^vus par les articles 15, 16 et 17, la
decision du president a cffet dans toute Tdtendue du territoire.
Elle est susceptible d'appeL La Cour statue comme en mati^re
d'appel de t6{6t6.
Art 19. — L.a pr^sente convention ne sera applicable qu'aux
decisions rendues par les Cours et Tribunaux post^rieurement au
jour oh die sera devenue obligatoire dans les deux pays.
Elle ne ddroge pas k la convention intemationale conclue k
la Haye le 14 novembre 1896 et relative k la procedure civile.
Elle n'enlbve aux Frangais aucun des droits que leur conf^re
la loi beige du 25 mars 1876 tant qu'elle sera on vigueur.
Art 20. — La pr^sente convention est conclue pour cinq ans
k partir du jour de Tdchange des ratifications. Dans le cas oh
aucune des hautes parties contractantes n'aurait notifid une ann^
avant Texpiration de ce terme son intention d'en faire cesser les
effets, la convention continuera d'etre obligatoire encore une
ann^e, et ainsi de suite, d'ann^e en annde, tant que Tune des
parties ne I'aura pas d^nonc^e.
Art. 21. — La pr^sente convention sera soumise k Tapprobadon
des pouvoirs Idgislatifs.
Les ratifications en seront ecli angles a Paris aussitdt que faire
( 349 )
se pourra, et la convention entrera simultan^ment en vigueur dans
les deux pays au jour fix^ par les parties contractantes.
En foi de quoi les pl^nipotentiaires respectifs ont sign^ la
pr^sente convention qu'ils ont rev^tue de leurs cachets.
Fait k Paris, en double exemplaire, le 8 juillet 1899.
(L.S.) Baron d'Anethan,
(Z.S.) DELCASS&
[Ratified by the Belgian and by the French Chambers.]
Mauritius. — Ordinance 35 or 1898.
To amend the law relating to proceedings in the Supreme Court of
Mauritius against absent defendants.
Sect. I. — In civil or commercial actions and actions on bills
of exchange and promissory notes against absent defendants,
whether British subjects or not, ^' initial process " shall not be
issued or served without the leave of the Supreme Court or a
judge thereof; such process is allowed to be served out of the
jurisdiction, when :
{a) the whole subject-matter of the action is land or immove-
able property situate within the jurisdiction (with or
without rents or profits) :
{b) any act, deed, will, contract, or obligation, or liability
affecting land or immoveable property situate within the
jurisdiction is sought to be continued, rectified, set aside,
or enforced in the action :
(c) any relief is sought against any person domiciled or
ordinarily resident within the jurisdiction :
{d) the action is founded on any breach or alleged breach
within the jurisdiction of any contract wherever made
which ought lo be performed within the jurisdiction :
( 350 )
(g) any injunction is sought as to anything to be done within
the jurisdiction, or any nuisance within the jurisdiction
is sought to be prevented or removed, whether damages
are or are not also sought in respect thereof:
(/) any person out of the jurisdiction is a necessary and
proper party to an action properly brought against some
other person duly served within the jurisdiction.
Any application to the Court for this purpose must be sup-
ported by an affidavit stating that in the belief of the deponent
the plaintiff has a good cause of action, and shewing in what
place or country the defendant is or may probably be found,
and whether he is a British subject or not, and the grounds upon
which the application is made ; and no such leave shall be granted
unless it shall be made sufficiently to appear to the Court or
judge that the case is a proper one for service out of the jurisdic-
tion under this Ordinance.
Mauritius. — Ordinance 41 of 1899.
{Amending the foregoing Ordinance*)
Sect, I. — ^Where the defendant is not a British subject^ nor in
British dominions, nor in any territory under British protection or
governed in virtue of a charter granted by the Queen, " initial
process " shall not be served upon him, but notice of such initial
process shall be given to him.
[In England the procedure is the same, except that service out
of the jurisdiction, or notice thereof, is also allowed where the
action is for the administration of the personal estate of any
deceased person who, at the time of his death, was domiciled
within the jurisdiction, or for the execution (as to property
situate within the jurisdiction) of the trusts of any written instru-
ment of which the person to be served is a trustee, which ought
to be executed according to the law of England (Rules of Supreme
Court, Order XL).]
( 351 )
Mauritius. — Ordinance 42 op 1899.
To determine the law with regard to the execution and recognition
of Foreign Judgments in Mauritius.
Whereas it is expedient for the purpose of facilitating com-
mercial relations between this Colony and other countries, and of
ensuring the benefits that accrue from the prompt and regular
course of justice, that the law with regard to the execution and
recognition of Foreign Judgments in Mauritius should be deter-
mined.
And whereas it is necessary to that end to repose full faith
in the justice of the laws, and confidence in the honour, integrity,
and impartiality of the judges in other countries.
Be it enacted by the Governor with the advice and consent of
the Council of Government as follows :
Sect, r (i). — In this Ordinance" judgment" includes any judg- Definitions,
ment, decree, order, or other adjudication of a Court of Law.
"Foreign Judgment" means a judgment given in a civil or
commercial case by a Court in
(tf) the United Kingdom :
(b) any British possession or any territory under British
protection or governed in virtue of a charter granted
by the Queen :
{c) any foreign country at peace with the Queen, or posses-
sion of any such foreign country other than foreign
countries or possessions of foreign countries in which
Consular Courts, whether British or foreign, are estab-
lished :
(d) or any British or foreign Consular Court in any foreign
country.
Provided that the Governor in Executive Council may, subject
to approval of Secretary of State, by Proclamation declare that the
judgments of any foreign country or any possession of a foreign
( 352 )
Exclusion
of certain
judgments
from
Ordinance.
country, or of any foreign Consular Court, shall not come within
the provisions of this Ordinance. Such proclamation shall apply
to all proceedings under this Ordinance pending at the time of
the coming into operation of the said proclamation : provided
nevertheless that nothing therein contained shall operate to
prevent any proceeding being brought before the Courts of the
Colony (whether proceedings under this Ordinance were so
pending or not) on the original cause of action on which any
judgment to which such proclamation applies was given.
The term " foreign judgment " further includes a judgment
for rent or profits of immoveable property in the Colony, but does
not include a judgment affecting or creating any right, title, or
interest in or over immoveable property in the Colony.
(2). — The term "foreign judgment" does not include, and
this Ordinance does not apply to judgments (except in so far as
they may decree or give any order in relation to the payment of or
right to a sum of money) of any Admiralty or Vice-Admiralty
Court, or of any Prize Court or in rem or in any of the matters
following :
(ci) matrimonial :
(^) lunacy:
(f) relating to the guardianship or curatorship of minors or of
prodigals ;
(d) relating to the probate of wills or letters of administra-
tion, to successions or to partitions of property :
{i) relating to the status of any person :
(/) criminal, or affecting personal liberties or depriving any
person of any civil or civic right :
(£) relating to bankruptcy, insolvency, cessio bonortim^ or
winding-up of companies :
(h) not coming within the meaning of the words '* civil or
commercial case."
Provided that when any foreign judgment (other than a judgment
decreeing or giving any order in relation to the payment of or
( 353 )
right to a sum of money) given by any Court in any matter so
exdudei from the provisions of this Ordinance comes before a
Court of this Colony for execution or for recognition, the said
Court shall, both in the way in which it shall be brought before it
and in all other things relating thereto, be guided by the principles
of the law of England.
Sect, 2, — Foreign judgments, when authenticated as required Effect of
by this Ordinance, shall be executed and recognised by the Courts j^^^'^^^j^
in this Colony in conformity with the rules and subject only to
the exceptions contained in this Ordinance.
Provided that such execution and recognition shall only be
accorded as between the parties who are bound thereby by the
law of the country, colony or jurisdiction in which the judgment
was pronounced.
Sect, 3. — The execution and recognition aforesaid shall extend Foreign judg-
to any judgment, whether by default or otherwise, given in any against absent
proceeding, although the defendant or respondent, whether sub- defendants,
ject or alien, was not present in the country, colony or jurisdiction
in which the proceeding was commenced
Provided, however, that this article shall not apply to any
judgment by default given
(i). in any proceeding against such absent defendant or re-
spondent by means of an arrestment or seizure of property used
to found, create or establish jurisdiction, unless the cause of action
arose within the jurisdiction ; or
(ii). in any proceeding commenced against such absent defen*
dant or respondent solely because the obligation or act which was
the subject matter of such proceeding was contracted with or
affected a subject of or a resident in the country, colony or juris-
diction in which the proceeding was commenced.
Provided, further, that this article shall not apply to a judg-
ment by default given in any proceeding in which the defendant
or respondent was an alien, and was out of the territorial jurisdic-
tion of the Court which gave the judgment at the time the pro-
ceeding was commenced, unless the law of the country, colony or
2 A
( 354 )
Order for
c... ^ 1. a of
foreign judg-
ment to be
on motion.
jurisdiction in which the proceeding was commenced requires
service of the initial process in such proceeding to be personal ;
or, where personal service cannot be effected,
(a) requires in lieu thereof substituted service of such process
to be effected, if on some third person then on some
person, or if by advertisement then in some newspaper,
in the country where the defendant may, in the opinion
of the Court or other authority allowing such substituted
service, probably be found ; or
(d) allows in lieu thereof substituted service in such manner
not above specified as may in the opinion of the Court
or other authority allowing such substituted service best
ensure the fact that the proceeding has been commenced
coming to the knowledge of the defendant or respondent;
and the Supreme Court is satisfied that such fact has
come to the knowledge of the defendant or respondent.
Sect, 4 (i). — No action or any proceeding other than that
prescribed by this Ordinance shall be brought on a foreign judg-
ment or on the original cause of action on which any foreign
judgment has been given.
(2). Enforcement of a foreign judgment may be sought by
motion for execution thereof made before the Supreme Court, on
which motion the Supreme Court shall give judgment as in an
ordinary case within its jurisdiction, subject only to the principles
laid down in this Ordinance. If the judgment of the Supreme
Court be in favour of the party making such motion, such judg-
ment shall be for execution of the foreign judgment, or shall be in
the form of an order as nearly as may be in the terms of the
foreign judgment, as the circumstances of the case may require;
execution therein, or process to enforce obedience thereto, as the
case may be, shall issue according to the law for the time being
governing execution of judgments or orders of the Supreme
Court
The expression " judgment for execution," when used in this
Ordinance, shall be held to mean the judgment given by the
( 355 )
Supreme Court on the motion for execution under this paragraph
in favour of the party making such motion.
(3). If the party against whom the judgment has been given
be within the Colony, eight days' notice of such motion shall be
given in the manner provided by law for serving notices of motion
before the Supreme Court
(4). If such party be absent from the Colony, service of the
notice of such motion shall be governed in all respects by the law
governing the service of initial process on absent defendants ; and
as far as may be necessary the provisions of the Absent Defen-
dants Ordinance, 1898, shall apply to all proceedings subsequent
to such motion.
(5). The law in force in the Colony with regard to any pro-
ceedings subsequent to judgment, and to appeals to Her Majesty
in Council, shall apply to the judgment to be given on such
motion.
Sect. 5 (i). — The motion for execution of a foreign judgment Documents
shall be supported by the following documents : motioa^''
(i). a true copy of the judgment certified and signed by the
judge or judges by whom such judgment was pronounced ;
(ii). a certificate granted and signed by an officer of the
country, colony, or jurisdiction in which the judgment was given,
duly appointed in that behalf, stating that he has received from
the other party applying for such certificate an affidavit (or other
document having tlie like effect as an affidavit) setting out the
facts following, and that he is satisfied that such facts are true,
that is to say —
{a) that the judgment is one on which execution (whether
conditional — exicution provisoire—ox not) can issue :
(b) that complete satisfaction of the judgment has not been
obtained :
(c) that reasonable efforts have been made to obtain satis-
faction of the judgment, or that there is no reasonable
probability of the judgment being completely satisfied in
the country, colony or jurisdiction in which it was given.
2 A 2
( 356 )
If the judgment has been satisfied in part the affidavit or
other document shall state to what extent satisfaction has been
obtained, and the motion shall be for execution only of such part
of the judgment as has not been satisfied.
(iii). A true copy of the affidavit or other document certified
and signed by the officer granting the certificate,
(2). The appointment of the officer to grant such certificate,
together with the signatures of such officer referred to in the
preceding paragraph, shall be verified by the judge or one of the
judges by whom the judgment was pronounced ; the signature of
such judge, as well as the signatures of the judge or judges referred
to in the preceding paragraph, shall be verified, as to :
(a) English judgments, by the Lord Chancellor of England ;
(d) Irish judgments, by the Lord Chancellor of Ireland ;
(c) Scotch judgments, by the Keeper of the Great Seal ;
(d) British Indian judgments, by the Legal Member of the
Council of the Governor-General of India ;
(e) British colonial judgments, by the Governor-General,
Governor, or Administrator as the case may be ;
(/) Judgments emanating from any territory under British
protection, or governed in virtue of a charter granted
by the Queen, by the principal British officer resident in
such territory ;
(f) British Consular Court judgments by the British Am-
bassador, Minister, Chai^g^ d* Affaires, Consul-General,
Consul, or . the principal diplomatic officer in the
country where the Consular Court is established ;
(X) foreign, foreign colonial, and foreign Consular Court
judgments by such officer of the foreign country to
which the Court belongs, or in which the Court is
situated, whose office most nearly corresponds with that
of the before-mentioned British officers in each case,
such office and the signature of such officer being
( 357 )
certified by the British Ambassador, Minister, Charg^ ^
d'Affaires, Consul-General, Consul, or other principal
diplomatic officer in the country to which the Court
belongs, or in which the Court is situated.
Sect, 6 (i). — ^The judgment for execution referred to in article When execu-
4 shall be refused, or on subsequent motion a judgment for jjlf^*
execution already given may be set aside, upon such terms as
the Court may think fit as to costs and otherwise (unless the
Court shall see fit to refuse it conditionally, or to vary; or
suspend it), if any of the following matters shall be established,
that is to say :
(i). That in accordance with the law of the country, colony
or jurisdiction in which the judgment was given, either
(a) it has been satisfied ; or
(b) the person against whom it was given has been released
from obedience thereto ; or
{c) execution upon it is, or by judgment has been, temporarily
or indefinitely stayed.
(ii). That execution in the country, colony or jurisdiction in
which the judgment was given either
(a) cannot issue ; or
(b) can only issue subject to a condition ; or
(c) could not at the time of motion made have issued
without leave ;
in which last two cases, before the judgment for execution is
given, or if such judgment has been given, before execution
is allowed to issue or be carried into effect, as the case may be,
the Court shall make such order as the circumstances of the case
may require for proof to be given of the condition having been
fulfilled, or of the leave having been granted, as the case may be.
(iii). That the judgment contains provisions the execution of
which would be contrary to the policy of the law {lois dordrc
public) of the Colony.
( 3S8 )
(;2).— The Court may further decline to give judgment for
execution, or if such judgment has been given, may suspend
execution thereon, upon such terms as it may think fit as to costs
or otherwise, if it is satisfied that the time for appealing against
the judgment, according to the law of the country, colony or
jurisdiction in which it was given, has not yet expired, and that
an appeal is about to be brought ; or if it is satisfied, notwith-
standing such time for appealing has expired,
(a) that there exists a remedy against the judgment according
to the law of the country, colony or jurisdiction in
which it was given ;
(d) that there exist primd fade grounds to warrant an
application for such remedy being made under such
law ; and
{c) that such an application is about to be made.
Provided that, where it is alleged that the judgment has been
obtained by fraud or collusion, and the Court is satisfied either
{a) that there does not exist any remedy against such
judgment according to the law of the country, colony
or jurisdiction in which it was given ; or
(b) that there does exist such remedy, but that the person
against whom the judgment has been given has through
no fault of his own been unable to avail himself
of it,
then the Court may entertain and determine the question of
the alleged fraud or collusion, and if in its opinion the allegation
is proved, the Court may refuse to give judgment for execution,
or, if such judgment has been given, may on subsequent motion
set aside such judgment upon such terms as it may think fit as to
costs or otherwise.
Interest on Sect, 7. — Interest on a foreign judgment shall be considered
foreign judg- 0*0
meats. to be part of the judgment, and shall run and be payable after
judgment for execution has been given in the Colony, in accordance
( 359 )
with the law of the country, colony or jurisdiction in which the
foreign judgment was given, until ftdl satisfaction thereof has been
obtained.
No interest shall run or be payable on the judgment for
execution.
Sect, 8. — Where concurrent actions or proceedings between Concurrent
the same parties and in respect of the same cause of action, ^"'^•'
either wholly or in part, are pending in this Colony and in any
other country, colony or jurisdiction, the Courts of this Colony
shall in all respects be guided by the law of England with regard
to
(a) die making of an order suspending one or more of the
said actions or proceedings, or allowing one or more of
them to proceed;
ip) the defence of /i> alibi pmdtns; and
{c) the recognition of any order made with regard to such
concurrent actions or proceedings by any Court in such
country, colony or jurisdiction.
In determining any question with regard to the identity of the
causes of action in the concurrent actions or proceedings, or to
the parties who are or may be bound by the judgments which
may be given therein respectively, the Court shall in all respects
be guided by the law of England.
Sut, 9 (i). — The provisions of this Ordinance, except in Recognition
matters specially dealt with by this article, shall apply to ^^e Pj '^^^
recognition of a foreign judgment when it is pleaded as an
estoppel or bar to any proceeding in the Colony on the same
cause of action between the parties who are bound thereby, and
in such case the matter in respect of which the foreign judgment
has been given shall be considered in the Colony as res judicata.
(2). The judgment, whether it is in favour of the party so
pleading it, or is in favour of the party against whom it is so
pleaded, shall be proved and certified according to the manner
provided in article 5 or so much of the said article as the circum-
( 36o )
stances of the case may require, provided that in all cases the
necessary signatures shall be verified as required by paragraph (a)
of that article.
(3). The party against whom the judgment is pleaded may
nevertheless prevent the effect oi res judicata being accorded to it
by proving that the judgment proceeded upon a rule of law or
of procedure which prevented the proceeding from being brought
in the Court by which such judgment was given, but which did
not at the same time extinguish the claim in respect of which
the proceeding was sought to be brought.
(4). The Court may further stay the progress of the proceeding
in which the foreign judgment is so pleaded upon such terms as it
may think fit as to costs or otherwise, if it is satisfied that the time
for appealing against the judgment according to the law of the
country, colony or jurisdiction in which it was given has not yet
expired, and that an appeal is about to be brought ; or if it is
satisfied, notwithstanding the time for appealing has expired,
(a) that there exists a remedy against the judgment accord-
ing to the law of the country, colony or jurisdiction in
which it was given ;
{p) that there t^ii&t primd facie grounds to warrant an applica-
tion for such remedy being made under such law ; and
(c) that such an appUcation is about to be made.
Provided that where it is alleged that the judgment has been
obtained by fraud or collusion, and the Court is satisfied either
(a) that there does not exist any remedy against such
judgment according to the law of the country, colony
or jurisdiction in which it was given ; or
(J?) that there does exist such remedy, but that the person
against whom the judgment has been given has through
no fault of his own been unable to avail himself of it,
then the Court may entertain and determine the question of
the alleged fraud or collusion, and if in its opinion the allegation
is proved, the Court may allow the proceeding in which the foreign
( 36i )
judgment is so pleaded to proceed upon such terms as it may
think fit as to costs or otherwise.
(5). Nevertheless, when the judgment is in favour of the person
pleading it, if it contains provisions the recognition of which
would be contrary to the policy of the law {lois etardre public)
of the Colony, it shall not be recognised as required by this
article.
Sect. 10. — Awards of arbitrators or umpires shall be executed ^^J^^^
and recognised in accordance with the provisions of this ordinance
after they have become or have been made executory in the
country, colony or jurisdiction in which the proceedings in which
the award was given have taken place.
Sect, II (i). — In all questions relating to security for costs to Security for
be given by plaintiffs in proceedmgs before the Supreme Court,
the Court shall in all respects be guided by the law of England.
(a). Security for costs may be required subject to the said law
from the party moving for execution of a foreign judgment under
this Ordinance whenever a plaintiff would be required to give such
security in an ordinary proceeding before the Supreme Court
Sect. 12. — Affidavits and other judicial documents (/ikes Effect of
judidaires) made in any country, colony or jurisdiction, shall affidavits,
receive in the Colony the same legal effect as they possess in the
country, colony or jurisdiction in which they were made.
Sect. 13. — The Judges of the Supreme Court shall make rules Judges to
as to procedure and costs for the purpose of carrying out the ™* «">««•
provisions of this Ordinance in the same way and subject to the
same conditions as to approval and other matters as rules arj
now and may hereafter be made for the Supreme Court
Sect. 14. — Whenever in this Ordinance the expression "law of Meaning of
England '' is used, it shall be held to include the law as established England,
by the English Courts at the time being together with any statutes
or rules having the force of statutes which are in force when this
Ordinance comes into operation. But it shall not include any
statutes or rules coming into force or treaty or convention entered
( S62 )
into by the Queen after this Ordinance comes mto operation unless
such statute or rule or such treaty or convention has been ex<^
tended to or made applicable to or includes this Colony.
Application Sect. 15. — This Ordinance shall apply to foreign judgments
of Ordinance 1 • « « « • ... .
to existing which have been given at the time it comes mto operation.
judgments.
Short title. . Secf. 1 6. — This Ordinance may be cited as the Foreign Judg-
ments Ordinance, 1899.
APPENDIX B.
BANQUET DE LA BOURSE.
DiSCOURS.
Discours de M. Waddington, President de la Chambre de
Commerce de Rouen :
Messieurs, — Les accents vibrants de notre air national que
nous venons d'entendre sont le prdambule pour le toast que je
vais porter.
Dans cette assemble, c'est un grand honneur et un grand
plaisir pour moi de porter la santd du chef de I'Etat, du President
de la R^publique.
J'ai rhonneur d'avoir cotoy^ pendant de longues ann^es cet
honn^te homme et ce bon citoyen, et c'est ainsi que j'ai appris k
Taimer, k le respecter.
Depuis qu'il a ^t^ 6iev6 k la fonction qu'il occupe, M. Loubet a
montrd qu'il dtait k la hauteur de sa tiche et il a accompli son
devoir modestement et simplement
Tout demibrement encore, messieurs, au cours de TExposition,
je le voyais presque tous les jours, malgr^ sa grande fatigue, visiter
notre Exposition dans tous ses coins et recoins et dtudier les
produits multiples et varies de Tindustrie, examiner avec attention
les progrbs de la science.
Qu'il s'agisse de produits industriels ou des questions pouvant
intdresser le bien materiel ou moral de toutes les classes et surtout
de celle qui souffre et qui peine, vous pouvez fitre assurd qu'il est
toujours au premier rang.
Prenant part k la discussion, encourageant, ^clairant au besoin
la discussion de quelques paroles pleines de logique et de bon
stns.
( 364 )
Certes, s'il Tavait pu et si ses occupations et un pen sa
grandeur ne Tattachaient au rivage, il se serait fait un plaisir de
travailler avec vous k cette grande oeuvre de droit international,
dont vous avez jet^ les fondements. Aussi, suis-je sOr d'entrer dans
les vues du President en associant son nom au toast que je vais
porter tout k Theure k I'union intemationale.
.Cette union se realise en ce moment dans cette salle oil sont
representees presque toutes les nations du monde ; eUe est le but
de vos discussions et de vos resolutions.
Bien plus, elle existe en chair et en os sous les murs de P^kin.
Pour la premiere fois dans Thistoire nous voyons, rassembl^s,
Ik-bas, unis sous le meme commandement, obdissant k la m^me
inspiration, les soldats des deux mondes, qu'ils appartiennent aux
vieux Etats de TEurope, k la jeune Amdrique ou k cet empire de
Textr^me orient qui a franchi en quelques ann^es dans la route
de la civilisation les espaces qui nous ont coiii6 des si^cles d'efforts
et de fatigues.
A ces soldats nous pouvons tous envoyer, sans arribre-pens^e,
nos souhaits de succbs, car ils livrent li-bas le bon combat pour
la sainte cause de Thumanite. lis se battent pour le droit des
gens, pour la sdcurite des ambassadeurs, qui est Tarticle premier
du droit intemationaL
A ces soldats qui peinent, qui souffrent, permettez-moi d'adresser
un salut respectueux et un message d'encouragement, et permettez.
moi de confier ce message au glorieux militaire M. le General
Voyron, que je vois devant moi, qui a fait ses premieres armes
en Chine dans Texp^dition de z86o et qui sait k quels dangers
sont exposdes nos armies.
Messieurs, je vous invite k boire k la santd de M. Loubet, Presi-
dent de la Republique frangaise, et j'associe k ce toast celui de toutes
les nations representees dans TAssociation du droit intemationaL
Discours de M. le Maire de Rouen :
M&SSIEURS, — Mon premier mot k ce banquet doit ^tre un mot
de cordial et sincbre remerciment k M. le Senateur Waddington,
( 365 )
le distingu^ prfeident de la Chambre de commerce de Roueii«
Je tiens k le remercier ainsi publiquement d'abord de Tinitiative
qu'il a prise de concert avec mon ami, M. Deshayes, de provoquer
le choix de la ville de Rouen pour la reunion du dix-neuvi^me
Congrbs de FAssociation de droit international. Je tiens k le
remercier aussi de la pens^e qu'il a eue d'associer Tadministration
et le Conseil municipal.
II m'est agr^able de rendre hommage anx sentiments dev^s
dont il s'est inspire et de constater la bonne harmonie entre la
Chambre de commerce et I'Assembl^e municipale.
J'ai 66}k eu Thonneur de vous dire, k la stance d'ouverture, que
votre presence ici nous donnait un sujet de legitime fiert^ ; elle
est aussi Tobjet d'une vive satisfaction dans une ville industrielle,
commerciale et maritime comme la ndtre. Nous arons autant
qu'ailleurs, peut-^tre m6me plus qu'ailleurs, la nette perception des
grands int^rfits intemationaux.
Nous Savons combien il importe d'asseoir sur la justice et sur
r^quit^ les lois qui doivent r^gler les diffi^rends entre les peuples
dvilis^.
Soyez certains que nous suivons vos travaux avec la plus pro-
fonde attention, et pour les questions de navigation notamment,
vous pr^parez des amdiorations heureuses qui seront autant de
conqudtes au profit de la paix si utile aux hommes.
Toutes ces questions sont dignes au plus haut point de soUidter,
de tenter les intelligences sup^rieures et de passionner les esprits
nobles et g^n^reux du monde entier.
Voilk pourquoi au nom de la ville de Rouen, je salue ici les
illustrations qui, sans distinction de nationality, sont venues travailler
ensemble au bien de I'humanit^.
Sans doute, messieurs, il ne faut pas se bercer d'illnsions, il ne
faut pas croire que les resolutions proposdes par le Congr^ vont
recevoir une application immediate, vont transformer les lois sous
Fempire desquelles nous vivons, mais il est raisonnable de penser
que vos travaux ambneront des amdiorations utiles. J'ai la
conviction que le congrbs de Rouen portera de bons fruits.
C'est dans cet espoir que je vous renouvelle les remerclments
{ 366 )
de mes concitoyens et c'est dans cette pensde que je Ibve mon
verre pour boire k la sant^ des hommes que nous sommes si
heureux de possdder parmi nous.
Messieurs, k la sant^ des congressistes.
Discours de M. Baldwin, President de TAssociation de droit
International :
Monsieur Waddington, Monsieur le Maire, Messieurs, —
UAssociation de droit international a ^t^ heureuse de se r^unir
dans cette ville historique. Mais si tous les monuments de cette
ville, comme M. Waddington Ta dit hier, sont du Moyen-Age,
ses fabriques, ses ateliers, ses quais, ses bitiments demeurent
Les monuments tout tremblants, qui semblent peu solides, ne
sont pas moins des bases solides sur lesquelles elle pent se reposer,
ce sont les insignes de sa legitime renomm^e universelle.
Notre association, par bonheur, n'^tait pas organisde sur des
lignes ^troites. Le droit international est plutot Toeuvre des
peuples que des hommes, plut6t Toeuvre des marchands que des
juristes.
Votre hospitalitd a ^t^ vraiment g^ndreuse, et elle justifie le
vers de Henri de Bomier : " Tout homme a deux pays, le sien et
puis la France."
Monsieur le Maire, en montant hier soir le grand escalier de
THdtel de Ville, j'ai remarqud une tablette d'airain qui en portant
la date de Tan huit de la premibre r^publique, la reprdsente
comme ayant 6t6 ^tabli par la loL
Au-^essus il y a cette inscription : " \Jn\t6 des poids et des
mesures en tous les temps et dans tous les peuples."
Ce principe g^n^reux a toujours 6x6 le principe de la legislation
fran^se.
Je ne pourrais pas souhaiter pour notre association des ^^ments
plus heureux qui de travailler sous cette influence constante.
Le present, qu*est-ce que c'est, Tavenir est la seule chose au
monde qui demeure.
( 367 )
Discours de M. Marais, ancien bitonnier de Tordre des
avocats, Rouen :
Messieurs, — Monsieur le President de la Chambre de com-
merce me donne la parole ; il est trop aimable pour que son d^sir
ne soit pas satisfait imm^diatement par moi, bien que dans une
certaine mesure je ne sois pas dispose k prendre la parole.
Cependant, je ne voudrais pas donner ce spectacle qui serait
plus drole, c'est que vous voyiez un president d'assemblde donner
la parole k un avocat, et I'avocat qui la refuse.
Je me propose tout simplement de porter un toast k notre
Eminent president de TAssociation de droit international et aux
membres de cette association qui sont les membres Strangers.
Monsieur le Maire, dans un sentiment trbs-^levd et par une
parole trbs-heureuse, vous disiez tout k I'heure que le role du
droit international ^tant en quelque sorte illimit^, tant est vaste
le champ des Etudes qu'on veut parcourir, et il pourrait presque
prendre pour devise cette pens^e relev^e dans un vieil auteur
latin : '' Je suis un homme, et rien de ce qui est humain ne m'est
indifferent," tant il est vrai que le droit international s'applique
k des objets qui concernent, qui int^ressent Thumanit^ tout
enti^re.
Tout d'abord ce sont les relations avec les peuples qu'on veut
dtudier; ces relations ne sont pas codifi^es, elles ont lieu par
Tusage et les progrbs de la civilisation font que cet usage quoique
n'^tant pas toujours observe devient de plus en plus humain et
s'il m'est permis de le dire, charitable.
Cependant, k ces usages il faut une codification, c'est Voeuvre du
jurisconsulte, du droit ; c'est lui qui determine les conditions dans
lesquelles la guerre se poursuivra^ quel sera le sort des prisonniers,
c'est lui qui rbglera toutes ces questions d^rivant de cette mau-
vaise situation, de ces questions qui naissent de la guerre.
Dans une pens^e qui restera assur^ment dans tous les cas
comme un des monuments les plus glorieux de sa vie de
monarque, le Czar ^mit I'id^e que toutes ces questions fussent
entendues.
II a embrass^ toutes ces questions d^jk ^tudides et vous savez
( 368 )
que la conference de la Haye a abouti 2l certaines resolutions ct
lorsque je vous dis que le droit international s'occupe de toutes
ces questions, je fais un pur et simple rappel de ce qui s'est
pass^ dans notre stance d'hier.
Nous avons ^tudid des rapports tr^s dtendus tels que, par
exemple, le trait^ de Tabolition de Tesclavage, et du Congrfes de
la Haye, et demain nous traiterons k la conference une question
sur la propriety en temps de guerre.
Ce n*est pas seulement dans ces rapports qu'elle excrce ses
facult^s, et j'ajoute que toutes ces questions auxquelles je fais
allusion jusque dans ces demi^res ann^es n'^taient en quelque
sorte que le rdsultat de traditions plus ou moins vagues aux-
quelles les peuples se soumettaient^ et c'est alors, il y a de 9a une
vingtaine d'ann^es, que des hommes considerables se r^unirent et
etablirent la base de cette Association de droit international qui
tient aujourd'hui k Rouen sa dix-neuvi^me session.
Des armateurs, des assureurs, des jurisconsultes, des magistrals
se reunirent tous et cherchferent k fonder cette association avec la
pens^e d'arriver ainsi k une entente Internationale.
Cest ITionneur de cette Association de droit international
d'avoir eu cette haute pens^e et ce sera sa gloire d'avoir, par des
travaux considerables, facilite les relations commerciales.
Ce n'est ni le moment ni le lieu de faire une excursion sur ses
travaux, et je ne veux parler que de Tun des resultats trfes im-
portants obtenus par les travaux des membres de Tassociation.
II s'agit de ces regies d'York et d'Anvers lesquelles sont
devenues, comme vous le savez, les chartes des contrats maritimes.
On en arrivait k des discussions interminables soulevees k
l*occasion des avaries de mer ; qui devait supporter les pertes ?
Qui a formuie ces regies? Cest TAssociation de droit inter-
national qui a reussi, dans sa Conference d*Anvers, k amener une
entente entre les differents inter^ts, et k mettre fin aux conflits des
legislations dans cette matifere par ce rbglement qui est aujourd'hui
incorpore dans les charte-parties du monde entier.
Pardonnez-moi, messieurs, de m'^tre etendu sur cette question,
mais nous sommes en congrbs.
( 369 )
A Torigine, TAssociation de droit international dtait presque
exclusivement compos^e d' Anglais et d'Am^ricains. La race lattne
y ^tait peu representee. Maintenant il y en a un certain nombre
de Fran9ais qui sont aujourd'hui membres de cette association
et aussi des Italiens, Espagnols, et Beiges. Que dis-je, de quelques
Fran9ais ? elle compte maintenant beaucoup de nos compatriotes
et k cette table m6me figure un repr^sentant de Tokio — le Japon
lai-m^me fait partie de TAssociation de droit international
Au nom des membres fran^ais de TAssociation de droit
international nous demandons la permission de porter la sant^
de nos amis, les membres etrangers de TAssociation de droit
international.
Discours de M. Barclay, President de la Chambre de Com-
merce Anglaise k Paris :
Messieurs, — Uintemationalisme soulfeve une foule de con*
sid^nts. J'ai un voisin qui m'a parl^ de Tintemationalisme et
bien ce n'est pas seulement cela, il y a k Paris surtout une grande
^cole de nationalisme, T Exposition de cette ann^e k Paris est la
plus glorieuse de toutes les espies d'internationalisme.
Quand la France entreprend quelque chose elle la mhne avec
an tel entrain que toutes les difRcult^s sont franchies.
J'esp^re un succ^s de ce genre pour les Fran9ais dans notre
association, et c'est une bonne augure que nous ayons comme
▼ice-pr^ident k Tavenir un homme comme M. Mantis; je sais
avec quel enthousiasme il a accept^ cette reunion k Rouen.
}e sais aussi de quelle fagon il a 6t6 second^ par M. Deshayes ;
vous voyez avec quel r^sultat M. Waddington et M. le Maire de
Rouen ont amen^ le Congrbs k Rouen.
Je voudrais dire un petit mot, je voudrais proposer un toast au
grand succbs de votre Exposition et au nom de mes compatriotes
je puis affirmer que c'est une gxande erreur qu'on ait dit que les
Anglais avaient voulu boycotter TExposition ; les Anglais vont venir
en masse, mais nous avons des vacances et jusqu'au moment ou
les vacances commenceront (et ils commencent) les Anglais ne font
2 B
( 370 )
que cotnmencer k venir it I'Expositioiu J'ai eu Toccasion de
constater qu'ils vont venir en grande masse.
Votre Exposition est la plus belle et Ton n'l jamais vu quelque
chose de pareil k cecL J'ai vu celles de 1878 et de 1889.
II n'y a plus qu'une chose k faire, c'est que chaque nation
subventionne la France pour Tengager k faire une exposition tous
les dix ans.
• Voule«-vous me permettre de d^roger un peu aux habitudes
anglaises et de porter un toast au plus glorieux succfes de
I'Exposition de 1900.
Discours de Sir Walter Phillimore :
Avant de lever cette s^nce et de quitter ces lieux hospitaliers,
je vous demande la permission de porter un dernier toast k la
Ville de Rouen, k la Municipality k la Chambre de Commeicey
et k tout le dt^partement de la Seine-Inf^eure* MessieurSy
je desire exprimer notre gratitude pour Taccueil, les bons soins
et les gages que vous nous donnez ; je parle aussi au nom de mes
collogues.
C'est giice k Tassistance de la France que les Etats-Unis aont
devenus ind^pendants. Nous autres Anglais, nous pouvons dire
cela, son esprit gdn^reux Ta toujours pouss^e k ddfendre les plus
nobles causes. Quelquefois, nous avons eu des malentendus,
mais nous n'avons jamais ^t^ amis plus ^troits.
Nous sommes k moiti^ normands puisque ce sont eux qui ont
fait la conqu6te de TAngleterre, c'est pourquoi je m'empFesse
d'autant plus k saluer la vieiUe capitale normande.
}e porte encore un toast k la bonne ville de Rouen.
Je bois k M. Waddington.
Discours de M. Benedict :
Au nom des membres amdricains du Congfes, je desire
appuyer les paroles de remerctment dites par Sir Walter Phillimore.
Nous esp^rons qu*un jour nos coUkgues fran^ais nous donneiont
le plaisir de les recevoir aux l^tats^Unis ; nous les prions de se
rappeler qu'il n'est pas plus loin de Rouen k New York que de
New York k Rouen.
INDEX.
Acconnts, Statement of ^ 341
Akxaqder, J. G., Paper by, on Abolition of Slavery 11^
Arbitration, International, Progress of, in closing years of nineteenth
M f* century. Paper by Dr. W. Evam Darby... I4
»i 91 Report of Committee on Hagne Conven-
» >» tion 59, yi
If „ „ „ Discussion of loi
f» ,1 ,, „ Resolution on ... 83, 106
Association, Constitution of ... 9
,, list of Members of 17-^5
„ „ Officers of 13
Aotran, Dr. F. C, Pftper on Immunity of Private Property at Sea ... 243
Baldwin, Hon. Simeon E., Inaugural address 35
„ „ Reply to addresses of welcome $2
„ ,4 Speech at banquet 366
Barclay, Dr. Thomas, Speech at banquet 369
Cartier, M. Jacques, Mayor of Rouen, Address of welcome by 31
>» f> >9 Speech at banquet 364
Carver, Mr. T. G., Q.C., Notes on Belgian Committee's Report on pro-
posed International Marine Insurance Rules 188
Cassano, Prince, Paper on the Nationality oi Sociitis par actions ... 330
Committee, Report of, o|i Hagua Convention 59i 7X
„ ,* of AAglo- American and Belgian, on Intamatienal
Marine Insurance 13a, 179
„ „ of, on Foreign Judgments 194
„ „ of, on Immunity of Private Property at Sea 230, 233
„ „ Appointment of new, for Foteign Judgments 229, 300
Conference, Officers 26
„ Members and others attending 27-28
Courts of Justiee, Part Ukta by, in davalopmfnt of International Law,
Inangural address by Hon. Simeon £. Baldwin 35
2 B 2
( 372 )
Barby, Dr. W. Evans, Paper on International Arbitration S4
Deshayes, M. Ernest, Paper on ** Rouen as a Safe Port " 123
,, Paper on use of terms of navigation in same sense
in all countries 325
Executive Council, Report of 298
Foote, Mr. J. Alderson, Q .C ., Draft International Convention, and 196, 204
„ ,, Draft Rules of Jurisdiction for Foreign
Judgments, in English and French 208, 216
Foreign Judgments, Report of Committee 194
„ Notes by Mr. Piggott upon Mr. Foote's convention 200
and rules of jurisdiction (see above) 211
,, Discussion 217
„ Resolution ... 228
„ Appointment of new Committee ... 229,300
„ f Teztof Franco- Belgian Treaty of 1899 on 343
„ Proposed Mauritius Ordinance upon 349> 35'
Fromageot, Dr. Henri, Paper on Immunity of Private Property at Sea 241
Glasgow, Proposal to hold next conference at 8, 298
Hague Convention, Report on 59i 71
Immunity of Private Property at Sea, Report of American section of
Committee 230
„ „ „ on behalf of European
section, by Mr. Wood
Renton 233
Paper by Dr. Autran 243
,, Dr. Fromageot ... 241
„ Mr. Stanley Metcalfe 236
„ M.Georges Marais ... 246
„ Sir Walter Phillimore 270
Opinion of Professor Holland 236
Discussion 277-298
Resolution 298
Intervention, Doctrine of, Paper by Mr. W. E. Lingelbach 106
Lingelbach, Mr. W. E., see above 106
Marais, M. Georges, Paper on Immunity of Private Property at Sea ... 246
Marais, M. Octave, Speech at banquet 367
Marine Insurance, International Rules of, Proposed by Anglo-American
Committee in English and French 134, 172
„ „ Report of Belgian Committee 179
„ „ Note by Mr. T. G. Carver upon Belgian Report ... 188
„ „ Discussion 140-172
,, „ Resolutions 168, 171, 172
Mastier, M., Prefect of Seine Inf<^eure, address of welcome by ... 29
Metcalfe, Mr. Stanley, Paper on Immunity of Private Property at Sea ... 236
( 373 >
Nationality of SoeUUspar Aethtu^ Vvpa by Priaoe CaaMoo 330
NaTigatioo, Using terms of, in same sense in all coimtries, Paper by
M. Ernest Deshayes 395
„ Resolution thereon 339, 330
Obituary 999
Phillimore, Sir Walter, Paper on Immunity of Private Property at Sea 270
„ Speech at banquet 370
Piggott, Mr. F. T., Notes on Draft Convention and Rules of Jurisdiction
for Foreign Judgments aoo, ail
Prefatory Note S
Prize, Law of^ as affected by decisions on captures made during war
between Spain and United States, Paper by Mr. Everett P. Wheeler 301
** International Law Cases during the Chino- Japanese War,*' by Professor
Takahashi, presented to the Conference 324
Publications received 34a
Renton, Mr. A. Wood, Report on behalf of European section of
Committee on Immunity of Private Property at Sea 333
Rouen, Chamber of Commerce of, banquet given by 229
▼ote of thanks to 338,339
Municipality oi^ vote of thanks to 338
" as a Safe Port," Paper by M. Ernest Dcahayes 123
Resolution thereon 131, 132
Slavery, Abolition of, Pftper by J. G. Alexander 116
Votes of Thanks 338
Waddington, M. Richard, President of Rouen Chamber of Commerce
Address of welcome 30
Speech at banquet 363
Wheeler, Hon. Everett P., Paper by, on Law of Prize 301
W)NOON|
PRINTED BY WIUJAM CLOW» AN9 SQN?, MMIT^I^b
•TAMPOBD STREET AND CHARINC Cl|0«iL
3^,/--^
THE INTERNATIONAL LAW ASSOCIATION,
t. MITBE COURT BUILDINGS, TEMPLE, LONDON, E.C.
REPORT
OF THE
TWENTIETH CONFERENCE
HELD AT
GLASGOW,
August 20tli— 23rd, 1901.
LONDON :
PUBLISHED FOR THE ASSOCIATION
By WILLIAM CLOWES AND SONS, Limited,
7, FLEET STREET, E.G.
xgox.
REPORT
TWENTIETH CONFERENCE
THE INTERNATIONAL LAW ASSOCIATION
I, MITRE COURT BUILDINGS, TEMPLE, LONDON, E.G.
REPORT
OF THE
TWENTIETH CONFERENCE
HELD AT
GLASGOW,
August 20th— 23rd, 1901
LONDON
Published for the Association
By WILLIAM CLOWES AND SONS, Limited
7, FLEET STREET, E.C.
1901
'nz./^Aj;
^^'f^nO (\ . ^^.,
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LONDON :
PRINTED BY WILLIAM CLOWKS AND SONS, LIMITED,
DUKB STRBST, STAMFORD STR££T, S.E., AND GREAT WINDMILL STREET,
PREFATORY NOTE.
The Glasgow Conference is the twentieth international meetmg
which the Association has been the means of convening during the
twenty-eight years of its existence. The record of past work and
a present vigorous condition entitle the Association to claim the
character of a recognised institution; and the complete success
achieved by the Conference is a hopeful augury of the continuity
and usefulness of the Association's work. The testimony borne
by the Lord Chief Justice of England, in his impressive opening
address, that the labours of the Association are recognised and
appreciated by Executive authorities, should be an additional
encouragement to its members to continue their eflforts, and
should enlist the support and sympathy of lawyers, philan-
thropists and business men of every nation for its endeavours to
remove divergencies in national systems and ideas of public and
private law by international agreement
The hospitable invitation of the Lord Provost and Corporation
of Glasgow enabled the Association to hold its first meeting in
Scotland under the most favourable circumstances, both of place
and occasion, in the second city of the British Empire and the
commercial and industrial capital of Scotland, and during a year
when an International Exhibition of great importance and interest
offered an additional attraction for a visit to Glasgow.
' In the regretted absence of the Earl of Halsbury, Lord High
( vi )
Chancellor of Great Britain, who was unexpectedly prevented
from attending, the Conference was fortunate enough to have for
its President so great an international lawyer as the Lord Chief
Justice of England, the present Honorary President of the Asso-
ciation, and President of the Brussels Conference in 1895. It
had also the advantage of the presence and co-operation of the
Lord President and two of his colleagues of the Court of Session,
three other judges of the English High Court, the Law Officers of
the Crown for Scotland, several leading members of the English
Bar (one of whom has since become a member of the Bench),
lawyers from Belgium, Canada, England, France, Italy, Scotland,
South Africa, and the United States; prominent representatives
of British and foreign shipping and commercial interests, including
the Secretary of Lloyds ; and well-known delegates and members
of philanthropic societies. A gratifying feature of the attendance
was the large element from Glasgow, Edinburgh, and Scotland
generally.
In Public International Law a proposal of great prospective
value was adopted, after an interesting discussion by the Con-
ference, in favour of a general Arbitration Treaty between Great
Britain and France. Another proposal of practical importance
approved by the Conference was that of formulating in an inter-
national code the duties of neutral States during war. Tlie
reference of this question to a Committee gives reason to hope
that means may soon be found to supply this blank in the law of
nations.
In International Maritime Law a result of the first importance
was attained by the adoption, after keen discussion, of a code
of International Marine Insurance Rules, to be known as the
Glasgow Marine Insurance Rules of 190 1. These Rules embody
the substance of those considered at Buffalo and Rouen, but with
amendments suggested by American, Continental, and English
{ vii )
criticism. It is believed that if the shipping and underwriting
interests — for whose benefit the code has been framed — ^are
willing to give it a practical trial, a result will have been obtained
for Marine Insurance similar to that effected for General Average
by the York-Antwerp Rules.
On the important subjects of Marriage Laws and the Exe-
cution of Foreign Judgments, valuable Papers were presented
and interesting discussions took place. In Comparative Law,
the subjects of Assistance Judiciaire (Pauper Litigation), Foreign
Curators of Lunatics in English Courts, legislation on Habitual
Drunkards, and the methods of obtaining evidence of witnesses
resident abroad, were dealt with in suggestive Papers. Useful
contributions were presented on the topics of Trading with the
Enemy, and recent judicial decisions on the York-Antwerp Rules ;
whilst local colour and antiquarian interest were furnished by a
delightful exposition of the Relations between French and
Scottish Law.
All who attended the Conference will acknowledge a deep
debt of gratitude for the warm support and welcome tendered to
it, officially and unofficially, by all classes of the legal and com-
mercial community of Glasgow. Our special thanks are due to
the Lord Provost and Corporation of Glasgow for their splendid
hospitality; to the Clyde shipowners and the Reception Com-
mittee for their generous welcome ; and to the Press for its able
report of the proceedings. ^
After the close of the Conference, a cable message of friendly
sympathy and good wishes for the success of the Conference
was received from the American Bar Association, then in session
at Denver, Colorado, which the Secretaries acknowledged by
cable. On the lamentable occasion of the assassination of the
late President of the United States, the Secretaries cabled an
expression of sincere sympathy to the American Bar Association.
( viii )
Owing to the sad loss which the Association has sustained
by the death of Mr. A. Scott, on July 31st last, after twenty-three
years' faithful and efficient service as Assistant-Secretary, it
became necessary to make fresh arrangements for carrying on the
work of the Association. Accordingly, at a meeting of the
Executive Council, held on October 24th, it was decided to
transfer the headquarters of the Association to the chambers of
Mr. G. G. Fhillimore, at the present address; and his clerk,
Mr. J. R. Porter, who attended the Glasgow Conference, was
appointed Assistant-Secretary.
Joseph G. Alexander.
George G. Fhillimore*
I, Mitre Coart Buildings,
Temple, London, £.C.
December^ 1901.
Telegrams: 39, Temple, London.
( ix )
CONSTITUTION OF THE ASSOCIATION.
I. The name of the Association shall be " The International Name.
Law Association."
II. The Association shall consist : — Member*.
1. Of all those who participated in the Conference at
Brussels, commencing the nth October, 1873 ;
2. Of all who on their application are or who shall be
admitted by this Conference, or by a future one, or
by the Executive Council ;
3. Of such delegates from other Associations, formed for
the prosecution of the same objects, as may be
approved by the Executive Council ; each of which
Association is to be entitled to nominate from
time to time two delegates ;
4. Of Honorary Members.
III. The objects of the Association shall be the Reform and Objects.
Codification of the Law of Nations. Its relations with the
Institute of International Law, founded at Ghent in September
1873, shall be such as were determined by the Conference at
Brussels in October 1873.
IV. There shall be an Honorary President, a President, officer*.
Honorary Vice-Presidents, Vice-Presidents, a Treasurer, a Council
of sixty Members, of whom eighteen shall be an Executive
Council, and a General Secretary, with such other Secretaries
and Officers as the Executive Council may from time to time
appoint
V. At each Annual Conference the Presidents and other Election of
Officer^.
Officers shall be appointed for the year ensuing, and shall con-
tinue in office until others are appointed. The office of President
( X )
shall not be tenable for more than two successive years. The
office of General Secretary shall be permanent, subject to change
by the Association at any Annual Conference. The duties of
the General Secretary and of the other officers shall, except as
herein provided, be fixed by the Executive Council.
ExeStiJc''^ VI. The Executive Council shall have the general direction
CouncU. Q^ ^jjg affairs of the Association in the intervals between the
Conferences. It shall have power to appoint Vice-Presidents, to
make Bye-laws, to appoint Committees for special objects, to fill
vacancies occurring between the Annual Conferences, and to fix
upon such place or places of business as may be expedient It
shall also have the power of nominating Honorary Vice-Pre-
sidents, approving Local Committees, and nominating for the
year all such officers as the Association shall omit to nominate
at its Annual Conference. The President, Vice-Presidents, Trea-
surer, and Hon. General Secretaries shall be ex-offido Members of
the Executive Council. Five Members shall constitute a quorum
of the Executive Council, inclusive of any ex-officio Members who
may be present at the meeting of the Executive Council.
Conferences. VII. There shall be an Annual Conference of the Association,
to be held at such time and place as shall have been appointed at
the preceding Annual Conference or by the Executive Council,
and also such other Conferences as in the opinion of the
Executive Council circumstances may render expedient.
Quorum. VI 1 1. The Mcmbcrs present at the time and place fixed for
the opening of an Annual Conference shall constitute a quorum
for the transaction of business.
Order of IX. The Order of business at each day's meeting shall be as
business. ^ ,,
follows : —
1. Reading the minutes of the preceding meeting, unless
the reading is dispensed with by a vote of the
Conference ;
2. Receiving such communications as may be recom-
mended by the Executive Council for the
consideration of the Association ;
( xi ) .
3. Discussing such propositions as may be recommended
by the Executive Coimcil for discussion, and dis-
posing thereof as the Conference may determine.
X. The language in which the discussions shall be carried on Language,
and the minutes kept shall be that of the country where the
Conference is held, unless the Conference otherwise direct ; but
each Member may write or speak at his option in his own
language.
XI. A Member shall not speak more than once on the same Speeches. •
subject, except in reply or explanation, and not more than ten
minutes at a time, except by leave of the Conference.
XII. After each Annual Conference its Transactions shall be T'***'^-
tions.
published in a volume, under the direction of the Executive
Council, which volume shall contain the Minutes of the Con-
ference and such Papers as may be ordered to be printed.
XIII. Each Member of the Association shall pay to the Contrii»ap
Treasurer an annual sum of One Found sterling, or its equivalent,
or a sum of Ten Pounds sterling, or its equivalent, for life
membership. Each Association admitted to membership shall,
however, be required to pay an annual sum of Two Pounds
sterling, or its equivalent Each such Association may nominate
to any Conference any number of delegates not exceeding five,
provided that for every delegate beyond two such Association shall
pay a further sum of One Pound sterling, or its equivalent
XIV. No expenditure shall be made, nor liability incurred, ^JJ*"^'"
.^eyond the amount of funds in the hands of the Treasurer.
XV. This Constitution may be amended at any Annual Con- ^f^^^^^^
ference by a vote of three-fourths of the Members present ; two '*^'*-
days' previous notice having been given of the motion to amend.
OFFICERS OF THE ASSOCIATION.
The Rt. Hon. Lord Alverstone, G.C.M.G., D.C.L., Lord Chief
Justice of England.
The Rt. Hon. J. Blair Balfour, Lord President of tl\e Court of
Session, Scotland.
AMERICA (UNITED STATES).
Hon. Bancroft Davis, late Minister- Plenipotentiary at the Court of Berlin.
Hon. Carl Schurtz, late Secretary of the Interior.
BELGIUM.
Baron Lambermont, Ministre d'&tat.
CANADA.
Rt. Hon. Sir Henry Strong, Chief Justice of Supreme Court, Ottawa.
CHINA.
His Excellency Kuo-Taj-in> late Envoy-Extraordmary and Minister-
Plenipotentiary at the Court of St. James's.
FRANCE.
Monsieur A. Boucher-Cadart, President of the Court of Appeal, Paris.
Monsieur Richard Waddington, Senator for the Department of the Seine
Inferieure, and President of the Rouen Chamber of Commerce.
( xiv )
AUSTRIA ...
CAPE COLONY
DENMARK .
ENGLAND
ITALY.
P. BosELLT, Secretary of State for Industry and Commerce, President of the
Academy of Sciences, Turin.
JAPAN.
His Excellency Viscount Kawasse Masataka, late Envoy-Extraordinary
and Minister- Plenipotentiary at the Court of St. James's.
NETHERLANDS.
F. B. CoNiNCK-LiEFSTiNG, Vice-Presidcnt of the Supreme Court of the
Netherlands.
His Excellency Ritter Dr. Karl von Scherzer,
Trieste.
Rt. Hon. Sir J. H. De Villiers, K.C.M.G., Chief
Justice, Capetown.
Dr. C. Goos, Ministre des Cultes, Copenhagen.
Dr. Jur. A. Hindenburg, Avocat k la Cour
Supreme du Danemark, et Avocat Consultant
des Minist^res Danois, Copenhagen.
The Hon. Sir J. Gorell Barnes, Judge of the
High Court of Justice, London.
The Hon. Sir Gainsford Bruce, Judge of the
High Court of Justice, London.
The Hon. Sir William R. Kennedy, Judge of the
High Court of Justice, London.
The Hon. Sir John Bigham, Judge of the High
Court of Justice, London.
The Hon. Sir Walter G. F. Phillimore, Bart.,
D.C.L., Judge of the High Court of Justice,
London.
Thomas Barclay, LL.B., Ph.D., President of the
British Chamber of Commerce, Paris.
M. Edouard Clunet, Avocat k la Cour d'Appel,
Paris.
M. Octave Marais, Ancien Batonnier de I'ordre
des Avocats, Rouen.
Dr. F. Sieveking, President of the Hanscatic High
Court of Appeal, Hamburg, ex-President of the
Association.
Chas. F. Gabba, Professor in the University of
Pisa.
Comm. Aug. Pierantoni, Senator of the Kingdom
and Professor in the University of Naples.
Marchese Alessandro Corsi, Professor in the
University of Pisa.
FRANCE
GERMANY
ITALY
( XV )
JAPAN Professor Sakuy£ Takahashi, Professor of Law,
LL.D., Imperial Naval Staif College, Tokio.
NETHERLANDS ... Dr. T. M. C. ASSE&, Counsel to the Ministry of
Foreign Affairs, and Professor in the University
of Amsterdam.
SCOTLAND ... A. Scott Dickson, Esq., K.C., M.P., Solicitor-
General for Scotland, Edinburgh.
„ David Murray, Esq., LL.D., Glasgow.
SWEDEN Dr. S. A. Hedlund, Member of the First Chamber,
Gothenburg.
UNITED STATES... Hon. Simeon E. Baldwin, M.A., LL.D., Judge
of Supreme Court of Errors, Connecticut, and
Professor of Constitutional Law in Yale Uni-
versity, ex-President of the Association.
„ „ Hon. Robert D. Benedict, LL.D., Cuunsellor-
at-Law, New York.
{JouncU.
Chairman of the Extctttive Council:
The Hon. Sir Walter G. F. Phillimore, Bart. D.C.L.
♦The President, \
♦The Vice-Presidents, I £x.f,fK^
♦The Treasurer, | 'Jr^'
♦The Hon. Gen. Secretaries,'
♦Arnold, W., London.
AuTRAN, Dr. F. C, Marseilles.
Bensa, Prof. Enrico, Genoa.
Berlingieri, Prof. Aw. Francesco, Genoa.
Brown, Joseph, K.C, London.
♦Brunard, Hubert, Brussels. ^
♦Carver, T. G., K.C, London.
Cavsri, Aw. Maurizio, Genoa.
CouDERT, F. R., New York.
*Cox-SiNCLAiR, E. W. S., London.
♦Darby, W. Evans, LL.D., London.
Deshayes, Ernest, Rouen.
Dickson, Oscar, Gothenburg.
♦Elmslie, K. W., London.
Fromaceot, Dr. Henri, Paris.
Glover, Sir John, London.
Govare, Dr. Paul, Paris.
♦Hill, Gray, Liverpool.
Kelvin, Lord, LL.D., F.R.S., Glasgow.
♦Mc Arthur, Charles, M.P., London.
MiNGOTTi, Conmu Giuseppe, Genoa.
* Members of the Executive CouncU.
( xvi )
Passy, Fr£d6ric, Paris.
♦Pears, E. A., London.
Platt, Ch., Philaflelphia, U.S.A.
•Raikes, F. \V., LL.D., K.C., His Honour Judge, Malton,
Yorkshire.
Rawle, Francis, Philadelphia.
•RouN, Edouard, Brussels.
♦Scott, Sir John, K.C.M.G., London.
♦Shand, Right Hon. Lord, P.C, London.
♦Snape, Alderman Thos., Liverpool.
Stocquart, Dr. Chas. A. Emile, Brussels.
♦Stubbs, Charles, M.A., LL.D., London.
♦TOMKINS, F. J., D.C.L., M.A., London, and Denver, U.S.A.
♦Walton, The Hon. Sir Joseph, Judge of the High Court of
Justice, London.
♦White, John Bell, London.
"treasurer.
The Rt. Hon. Lord Avebury, F.R.S.
jankers.
Rqbarts, Lubbock & Co., 15, Lombard Street, London.
Ssonoraxx! general §cctelaxies.
J. G. Alexander, LL.B., Tunbridge Wells.
G. G. Phillimore, B.C.L., London.
Jlsstsfant §ecveiaxS'
J. R. Porter, London.
* Members of the Executive Council.
( Jtvii )
MEMBERS OF THE ASSOCIATION.*
An obelisk (f) signifies Life Membership.
Aldrich, Hon. F. H., Mofl&t Building, Detroit, U.S.A.
Alexander, J. G., LL.B., 3, Mayfield Road, Tonbridge Wells.
Allan, Murison, Edengrove, Dairsie, St. Andrew's, N.B.
fALVERSTONE, Rt. Hon. Lord, G.C.M.G., D.C.L., Lord Chief Justice of
England, Royal Courts of Justice, London.
Angier, Captn. T. V. S., 2, Whittington Avenue, London,
Arnold, W., 4-6, Throgmorton Avenue, London.
AssER, Professor T. M. C, Councillor of State, Amsterdam.
Association of Average Adjusters, Capel Court, London.
Austro-Hungarian Lloyd's Steam Navigation Company, Trieste.
AUTRAN, Dr. F. C, 2, Rue de I'Ormeau, Marseilles.
AvEBURY, Rt. Hon. Lord, P.C., F.R.S., High Elms, Famborough, Kent.
Bacon, Francis James, Cincinnati, Ohio, U.S.A.
Baococs;, B. F., 17, Water Street, Uverpool.
Bailey, John Rand, Les Oliviers, Cimiez, Nice.
tBALDWiN, Hon. Simeon E., LL.D., Judge of Supreme Court of Errors,
69, Church Street, New Haven, Conn., U.S.A.
t Balfour, Rt. Hon. J. Blair, Lord President of the Court of Session,
Edinburgh.
Barclay, Thomas, LL.B., Ph.D., 17, Rue Pasquier, Paris.
Barnes, Hon. Sir J. Gorell, Judge of the High Court of Justice, London.
Bartlbtt, Edmund M., 512, New York Life Buildings, Omaha, Nebraska.
Bate, J. Pawley, ii, New Square, Lincoln's Inn, London, W.C.
Battersby, Dr. C. F. Harford, 139, Palace Chambers, Bridge Street,
Westminster.
Bell, E. S. Moberly, 98, Portland Place, London.
Bell, Sir Jambs, Bart, 135, Buchanan Street, Glasgow.
Benedict, Hon. Robert D., LL.D., 68, Wall Street, New York.
Bennett, S. C, Boston, Mass., U.S.A.
Bensa, Professor Enrico, 19, Via S. Bernardo, Genoa.
BSRLiNGiSRi, Professor Aw. Francesco, Via Garibaldi 20, Genoa.
* The Secretaries will be glad to be informed of any change of address.
b
( xviii )
BiGHAM, Hon. Sir J. C.» Jndge of the High Court of Justice, London.
Blabss, Walthkr, 44, Longne Rae Neuve, Antwerp.
Blood, W. G., Keokuk, Iowa, U.S.A.
BoDiNGTON, O. £., 6, Boulevard des Capncines, Paris.
Bonaparte, Charles J., LL.B., 216, St. Paul's Street, Baltimore, U.S.A.
Bd&SEN-CoMiri, Riga.
BosBLLi, P., President of the Academy of Sciences, Turin.
fBoucuEE-CADART, ALFRED, Prudent de la Cour d'Appel, 19, Rue Pres-
bourg, Paris.
Bracciforti, Professor Dr. Conte Ferdinando, Via Boxgo Spesso 23,
Milan.
Brainerd, Cephas, Counsellor-at-Law, 47, Cedar Street, New York.
Brben, W. p., Fort Wayne, Indiana, U.S.A.
Brewster, Hon. Lyman D., Danbury, Conn., U.S.A.
Britannia Steam Ship Insurance Association, Limited, 17, Grace-
church Street, London.
British Shipowners' Mutual Protection and Indemnity Associa-
tion, 23, Rood Lane, London.
British Steamship Owners* Association, 26, St Thomas' Street,
Sunderland.
Brown, A. H., M.P., 12, Grosvenor Gardens, London.
Brown, Hon. Judge Addison, New York.
fBROWN, Joseph, K.C, 54, Avenue Road, Regent's Park, London.
Brown, R. Weir, 56, Gt. Marlborough Street, London, W.
Brown, Richard, 166, St. Vincent Street, Glasgow.
Bruce, Hon. Sir Gainsford, Judge of the High Court of Justice, London.
Brunard, Hubert, 9, Avenue de la Toison d'Or, Brussels.
Butler, Charles Henry, 71, Broadway, New York.
Butler, W. H., 105, Canning Street, Liverpool.
BUZZATI, Prof. J. C, Pavia.
Byrne, Charles, 122, Wellington Street, Glasgow.
Caird, Patrick T., Bellare, Greenock, N.B.
Cameron, Hon. J. D., Attorney-General, Wiimipeg.
Campbell, Chas. Macalester, Denver, Colorado, U.S.A.
Campbell, Rt. Hon. J. A., Stracathro, Brechin, N.B.
Carver, Eugene P., 28, State Street, Boston, Mass., U.S.A.
Carver, T. G., K.C., 2, Garden Court, Temple, London.
Cassano, Prince, 44, Avenue Montaigne, Paris.
Caveri, Aw. Maurizio, Campetto i, Genoa.
Chamber of Commerce, Antwerp.
Chamber of Commerce, Hamburg.
Chamber of Commerce, Leipsic.
Chamber of Commerce of America, liverpool.
Chamber of Commerce, Rouen.
Chamber of Shipping of the United Kingdom, 5, Whittington
Avenue, Leadenhall Street, London.
Chancellor, Justus, Chicago, U.S.A.
Chauncy, Chas., 251, South Forth Street, Philadelphia.
( xix )
Chisholm, J. H., Halifax, Nova Scotia.
Chrystal, J. G., Royal Exchange, Glasgow.
Clark, Martin, Pradential Building, Bufialo, U.S.A.
Clunet, E., Avocat k la Cour d'Appel, li, Rue Montalivet, Paris.
Clunie, J. M., I, Fenwick Street, Liverpool.
Clyde Steamship Owners' Association, 94, Hope Street, Glasgow.
Coldstream, J. P., W. S., 7, Cluny Terrace, Edinburgh.
Collins, J. H., Columbus, Ohio, U.S A.
CoMiT^ DES AssuREURS Maritimes de Paris, 50, Rue N. D. des
Victoiies, Paris.
CoMiTi DES AssuREURs Maritimes du Havre, Havre.
CoNiNCK-LiEFSTiNG, Dr. F. B., Vice-President of the Supreme Court of
the Netherlands, The Hague.
CooKES, Thos. S., 91, Gracechurch Street, London.
CoRSi, Professor Marquis Alessandro, Viale Umberto 6, Pisa.
CouDERT, F. R., LL.D., Advocate, 71, Broadway, New York.
Cox-SiNCLAiR, £. W. S., 2, Plowden Buildings, Temple, London.
Crane, R. Newton, i, Essex Court, Temple.
tCRAwsHAY, George, London.
Cremlyn, J. W. J., Gray*s Inn, London.
Crosby, James O., GamaviUo, Iowa, U.S.A.
Cross, Thomas, 176, St. Vincent Street, Glasgow.
Cunningham, F., Boston, Mass., U.S.A.
Dalrymple, J. D. G., Woodhead, Kirkintillock, Dumbartonshire.
Darby, W. Evans, LL.D., Secretary of the Peace Society, 47, New Broad
Street, London.
Davies, Julien T., M.A., LL.B., 32, Nassau Street, New York.
tDAVis, The Hon. J. C. Bancroft, LL.D., Reporter of the Supreme
Court of the United States, 1621, H Street, Washington.
Descamps, Chevalier, Ch&teau de Grismonstre, par Ferriire, Li^ge.
Deshayes, Ernest, Rouen.
Deutscher Lloyd, Transport-Versicherungs-Actien-Gesellschaft, N 24,
Oranienbnigerstr. 16, Berlin.
Dewey, Hon. Henry S., 23, Court Street, Boston, Mass., U.S.A.
Dickenson, M. F., 53, State Street, Boston, Mass.
Dickson, Hon. C. Scott, Solicitor-General for Scotland, Edinburgh.
tDiCKSON, Oscar, Member of the Swedish Parliament, Gothenburg.
DORN, Dr. M. VON, Editor of the Triester Zatung, Trieste.
Drummond, W. v., Shanghai, c/o H. S. King ft Co., 65, Comhill,
London.
Dumas, Jacques, LL.D., Procureur de la Republique, Rethel.
Duncan, Lucius C, M.A., LL.B., 135, New Bond Street, London.
DuNCKER, Arthur, Hamburg.
DuNSTAN, W., 4-6, Throgmorton Avenue, London.
Dusseldorfer Allgbmeine Versicherungs-Gesellschaft, Diisseldorf.
Edwards, E. E., 4, Chapel Street, Liverpool.
Edzard, Conrad, Rechtsanwalt, Bremen.
( XX )
Eeten, E. van, 5, Jan Van Lier Straat, Antwerp.
Elliott, Hon. Charles B., Judge, District Court of Minnesota, Minne-
apolis, U.S.A.
Elmslib, K. W., Average Adjuster, 63, Comhill, London.
Enthoven, S. Jules, Advocat-Procureur, The Hague.
Ewart, John S., Portage Avenue, Winnipeg.
Farrelly, M. J., LL.D., Goldsmith Building, Temple, London.
Fearnsides, J. W., 4, Brick Court, Temple, London.
Florance, E. T., 302, Camp Street, New Orleans.
FoLLETT, M. Dewey, Marietta, Ohio, U.S.A.
Folleville, Daniel de, Avocat k la Cour d'Appel, 22, Rue Clauzel, Paris.
" FoNCifeRE," Compagnie d* Assurances, 12, Place de la Bourse, Paris.
Forbes, Francis, 34, Nassau Street, New York.
Fortunato, Ernesto, Aw., Gennaro Serra 52, Naples.
FouLON, Georges, 191, Chauss^e d'lxelles, Brussels.
Franck, Louis, Avocat, Rue des Escrimeurs, 28, Antwerp.
French, A. G., 3, Pump Court, Temple, London.
Fredericksen, F., Maritime Bureau, Christiania.
Friend, W. Horace, 6, Crown Office Row, Temple, London.
Fromageot, Dr. Henri, Avocat k la Cour d*Appel, i. Rue de Villersexcl,
Paris.
Frost, Edward W., Milwaukee, Wisconsin, U.S.A.
Fyfe, F. B., 115, St. Vincent's Street, Glasgow.
Gabba, Professor Charles Francis, Pisa.
Gager, Hon. E. B., Derby, Conn., U.S.A.
Gallardo, Jeronimo y de Font, Banco de Espafia, Toledo.
Gardiner, F. C, 24, St. Vincent Place, Glasgow.
General Shipowners* Society, 5, Whittington Avenue, Leadenhall
Street, London.
Genicot, Francis, Dispacheur, Antwerp.
Gerdes, a., Aux Cayes, Haiti.
GiANNiNi, T. C. Aw., Via Ricasoli 20, Florence.
Glasgow Underwriters' Association, Underwriters* Rooms, Gla^ow.
Glover, Sir John, 88, Bishopsgate Street, London.
Glyn, Walter, 20, Water Street, Liverpool.
Goos, Professor C, Ministre des Cultes, Copenhagen.
GouBAREFF, D. N., Villa GoubareflF, Beaulien, par Villefranche-sur-mer,
Alpes Maritimes, France.
GouRLAY, Robert, 5, Marlborough Terrace, Glasgow.
GouRLiE, J. Hamilton, New York.
tGovARE, Dr. Paul, Avocat k la Cour d*Appel, 3, Rue de Stockholm, Paris.
Gow, Leonard, 45, Renfield Street, Glasgow.
Gray, Prof. John C, LL.D., 60, State Street, Boston, Mass.
Gregory, Prof. Charles Noble, LL.D., University, Wisconsin, U.S.A.
Griffiths, Austin E., City of Seattle, Washington, U.S.A.
Halkier, Dr. Herman, Advocate of the Supreme Court, Kronprinscsse-
gade 2, Copenhagen. ^
( xxj )
Hamm, Oberstaats-Anwalt, Cologne.
Harrington, C. S., K.C, Halifax, Nova Scotia.
Harrison, Hon. Lynde, LL.B., Exchange Buildings, New Haven, Conn.
Hartlepools Shipowners' Society, West Hartlepool*
Haynes, T. H., I, Clement's Inn, London.
Hebaro, F. S., Chicago.
Hedderwick, J. D., 79, St. George's Place, Glasgow.
Hedlund, Dr. S. A., Member of the First Chamber, Gothenburg.
" Helvetia " Allgbmbinb Versicherungs-Gesellschaft, St. Gall.
Uembnway, Alfred, 334 & 338, Tremont Building, Boston, Mass., U.S.A.
Henderson Brothers, 4, St. Mary Axe, London.
Hbnnebicq, LioN, I, Rue de Lausanne, BrusseU.
Heyne, W. D., 24, Hackin's Hey, Liverpool.
Hildebrand, Senator H., Domsheide io~i2, Bremen.
Hill, Gray, 10, Water Street, Liverpool.
HiNDENBURG, Dr. Jur. A., Avocat Consultant des Ministires Danois,
Dronningens Tvergade 40, Copenhagen.
HiNES, Clark B., Belleville, Ohio, U.S.A.
Hinkley, John, 215, N. Charles Street, Baltimore, U.S.A.
HooRiCKX, Gaston, Rue de Livourne 14, Brussels.
Hornblowbr, W. B., LL.D., 30, Broad SUeet, New York.
Howe, Hon. Wm. Wirt, New Orleans.
HoYE, Stephen M., 189, Montague Street, Brooklyn, New York.
tHucHTiNG, G. W., Bremen.
Hughes, John, ex-Mayor, Liverpool.
Hughes, R. M., Columbia Building,. Norfolk, Virginia, U.S.A.
Hull, T. M., Incorporated Law Society, 13, Union Court, Liverpool.
Hunter, J. W., Antwerp.
Hyde, Charles Cheney, M.A., 905, Merchants Loan and Trust
Building, Chicago.
iNGLis, David, 145, St. Vincent Street, Glasgow.
Institute op London Underwriters, i, St. Michael's House, Comhill.
Inverclyde, Rt. Hon. Lord, 30, Jamaica Street, Glasgow.
Isachssn, H., Grimstad, Norway.
"Italia" SocietX d'Assicurazioni Marittime, Fluviale e Ter-
RESTRI, Genoa.
tjACKSON, Andrew Marvel, Victoria Chambers, Hull.
Jackson, J. H., Mersey Chambers, Old Churchyard, Liverpool.
tjACKSoN, Thomas Cathrick, LL.D., Victoria Chambers, Hull.
Jager, George, Jun., 7, North John Street, Liverpool.
Jitta, Professor D. Joseph us, Keizersgracht 808, Amsterdam.
Jones, Stephen R., 38, State Street, Boston, Mass., U.S.A.
Kaemmerer, Dr. A., Rechtsanwalt, Hamburg.
Kaupmannschaft, Die Aelteste der, Berlin.
Kaufmannschaft, Die Vorsteher der, Konigsbcrg.
Kelvin, The Rt. Hon. Lord, LL.D., F.R.S., Glasgow.
tKENNEDY, Hon. Sir' William Rann, Judge of the High Court of Jubtice
94, Westboume Terrace, London.
( xxii )
KiRLiN, J. Parker, 5, Beekman Street, New York.
Kuo-Taj-in, His Excellency, late Chinese Minister in London, Peking.
Labori, Maitre, 41, Rue Condorcet, Paris.
Laeisz, C. Ferd., Neueburg 14, Hamburg.
Lambsrmont, Baron, Ministre d'etat, Brussels.
Lampard, Forder, 3, Pump Court, Temple, London.
Langlois, Jacques, Antwerp.
Laroche, H., 8, Rue Br^montier, Paris.
Leck, D. C, 5, Paper Buildings, Temple, London.
Lecourt, Arthur, 34, Rue de Minimes, Brussels.
Lee, R. W., BalUol College, Oxford.
Lejeune, Charles, Courtier d' Assurances, 53, Rempart Kipdorp, Antwerp.
Leval, Gaston de, 22, Rue Lebeau, Brussels.
Levy, J. A., Amsterdam.
LiNDLEY, Arthur, 3, Royal Exchange Buildings, London, E.C.
LiNDLEY, Robert, Average Adjuster, 2, Royal Exchange Buildings,
London.
Liverpool Average Adjusters' Association, 8, Harrington Street,
Liverpool.
Liverpool and London Steamship Protection Association, 10, Water
Street, Liverpool.
Liverpool Sailing Shipowners' Mutual Protection and Indemnity
Association, Liverpool.
Liverpool Shipowners' Association, 18, Water Street, Liverpool.
Liverpool Steamship Owners' Association, 10, Water Street, Liver-
pool.
Liverpool Underwriters' Association, Exchange Buildings, Liverpool.
Logan, W. L., 27, William Street, New York.
London Steamship Owners' Mutual Insurance Association,
Limited, 23, Rood Lane, London.
LoRiNG, Hon. William Caleb, Judge of Supreme Judicial Court, Boston,
U.S.A.
Love, Alfred H., Philadelphia.
Lumpkin, Hon. J. H., Atlanta, Georgia, U.S.A.
Lyon -Caen, Charles, 13, Rue Soufflot, Paris.
Mc Arthur, Charles, M.P., 61, Comhill, London.
McClain, Hon. E., LL.D., Iowa City, U.S.A.
Macdonell, John, C.B., Master of Supreme Court, 26, Belsize Avenue,
London.
MacLellan, Judge S. D., Truro, Nova Scotia.
fMAETERLiNCK, A., I, Rue des Dominicaines, Antwerp.
Malandrin, Raymond, Rouen.
Manderson, Hon. Charles F., Omaha, Nebraska.
fMANNHEiMER, T., Bank Director, Gothenburg.
Marais, Georges, i i bis. Rue de Milan, Paris.
Marais, Octave, Rouen.
Marcoartu, His Excellency Don Arturo de, Madrid.
( xxiii )
Marsden, R. G., 6, New Coart, Carey Street, London.
Marsh, Craig Adams, 201, Park Avenue, Plainfield, New Jersey.
tMASATAKA, His Excellency Viscount Hawasse, late JapaaeM Minister to
the Court of St. James's, Tokio.
Mathxr, John, 8, King Street, Manchester.
Mattbi, Alfred, 4, Paper Buildings, Temple, London.
tMERCER, George Gluyas, D.C.L., Drexel Building, Philadelphia.
Messagbries Maritimss, Compaonie des, I, Rue Vignon, Paris.
Mbulen, J. TBR, Heerengracht 248, Amsterdam.
Miller, William Galbraith, 15, Albany Street, Edinburgh.
Mingotti, Comm. Giuseppe, Piaxxa San Lorenzo 16, Genoa.
Monckebbrg, Dr. Rudolf, Hamburg.
Morgan, Alfred Fairfax, 39, The Parade, Leamington.
Morris, John, Jun., Fort Wayne, Indiana, U.S. A.
Morris, Robert C, D.C.L., 71, Broadway, New York.
MouRASS^ Harouo, 24, Harukimatchi, Santchome, Hongo, Tokio.
MowAT, Hon. R. A., Reform Club^ London.
Munro, G. L., J. p., 96, Highbury New Park, London.
Murray, David, LL.D., 169, West George Street, Glasgow.
Murray, Rt. Hon. A. Graham, Lord Advocate, Edinburgh.
Myndersb, Wilhblmus, 54, Wall Street, New York.
fNAGAOKA, JusHiE M. Y., c/o Josamni Hosokawa, Hamako, Tokio^ Japan.
Natusch, F. B. B., I, Fmch Lane, London.
Newcastle Protection and Indemnity Association, Newcastle-on-
Tyne.
Ninauve, FR^biRic, 16, Rue WatUu, Brussels.
NiVEN, Robert, Lincoki*s Inn, London.
North op England Iron Steamship Insurance Association, New-
castle-on-Tyne.
North of England Protecting and Indbmnity Association, Mari*
time Buildings, Newcastle-on-Tyne.
North of England Steam Shipowners' Association, King Street,
Quayside, Newcastle-on-Tyne.
Oberrheinischb Versichxrungs-Gessllschaft, Mannheim.
Orendorff, Alfred, Springfield, Illinois, U.S.A.
OvERTOUN, RL Hon. Lord, Overtoun, Dumbartonshire.
Palmer, Henry W., Wilkes Barre, Pennsylyania.
Pappbnkbim, Dr. Jur. Max, Witzstrasse 39, KieL
Parker, Lb Roy, 846, Ellicott Square, Buffido, U.S.A.
tPASSY, F., President of the Society of Economists, 8, Rue Labordire,
Neuilly, near Paris.
Pears, E. A., 16, St. Faith's Road, West Norwood.
Pechaja, Don Gonzalo Cedron de la, Leon, 21, Madrid.
Penton, E., I, Mortimer Street, Cavendish Square, London.
Petit, M. Auguste, 13, Rue de la Douane, Calais, France.
Phiiximore, Hon. Sir Walter G. F., Bart., D.C.L., Judge of the High
Court of Justice, London.
( xxiv )
Phillimore, G. G.» B.C.L., i, Mitre Court Buildings, Temple, London.
FiERANTONi, Comm. A., Professor, Senator of the Kingdom of Italy, Via
Magenta 5, Rome.
Platt, Charles, President of the Insurance Company of North America,
232, Walnut Street, Philadelphia.
Poole, Sir James, Liverpool.
Pratt, Hodgson, 40, Outer Temple, London.
Prrdohl, Senator Dr. Max, Hamburg.
Private Assurandeurer, De, Holmans Kanal, 16, Copenhagen.
"Protector" Mutual Assurance Co., Arendal, Norway.
Putnam, Harrington, 45, William Street, New York.
Raalte, Dr. £. £. van, Advocate, 4, Willemsplein, Rotterdam.
fRAiKES, His Honour Judge F. W., K.C., LL.D., The Leat House, Malton,
Yorkshire.
Rawle, Francis, 328, Chestnut Street, Philadelphia.
Ravnolds, Edward V., D.C.L., 67, Tumbull Street, New Haven, Conn.
Reck, F., Bremen.
Reid, Jambs A., 172, St. Vincent Street, Glasgow.
Rich, Burdett A., Rochester, New York.
RiONDEL, Albert, Captain, 7, Rue de la Paix, La Fl^che, France.
Rogers, Henry Wads, LL.D., Professor of Yale Law School, New
Haven, Conn.
ROUN, l&DOUARD, Place de I'lndostrie 35, Brussels.
Rose, George B., Little Rock, Arkansas, U.S.A.
Rosengarten, J. G., University of Pennsylvania, U.S.A.
Rossi, Aw. Cav. Vittorio de. Via S. Francesco 39, Leghorn.
Rows, Professor L. S., The College, Philadelphia.
tRUNDELL, T. W., Average Adjuster, 25, Castle Street, Liverpool.
Russell, Talcott Huntington, M.A., New Haven, Conn.
Russian Lloyd Assurance Society* St. Petersburg.
tSALiSBURY, Hon. Stephen, Worcester, Mass.
Sartori, August, Kiel.
tScHERZER, His Excellency Dr. Karl Rittbr von, 80, Corso, Gorz,
Austria.
Schlesische-Feuerversichbrungs-Gesellschaft, Breslau.
ScHURZ, Hon. Carl, LL.D., 54, William Street, New York.
Scott, Leslie F., 10, Cook Street, Liverpool.
Scott, Sir John, K.C.M.G., Deputy Judge-Advocate-General, i, Adam
Street, Adelphi, London.
Senioallia, Dr. Leone Adolfo, Piazza della Borea, 14, Naples.
Sewsll, J. T. B., 54, Faubourg St. Honor^, Paris.
Seymour, Hon. Morris Woodruff, M.A., Bridgeport, Conn., U.S. A.
tSHAND, Right Hon Lord, P.C, Athenaeum Club, London.
Sharp, Hon. George M., Judge of the Supreme Court, Baltimore.
Sherwood, F. W., 2, Paper Buildings, Temple, London.
Shipping Federation, ioi, Leadenhall Street, London.
( XXV )
Short, Edward Lyman, 59, Cedar Street, New York.
tSiEBOLD, Baron Alexander von, Netselbeckstrasse 14, Berlin.
SiEVEKiNG, Dr. F., Obcrlandesgerichts-Prasident, Grosse Theaterestrasse 35,
Hamburg.
Smith, Burton, Atlanta, Georgia, U.S.A.
Smith, Prof. Edwin Burritt, M.L., Chicago.
Smith, Samuel, M.P., 11, Delahay Street, Westminster.
Snape, Alderman Thomas, The Gables, Croxteth Road, Liverpool.
Soetbeer, Dr. Heinrich, Secretary of the Deutscher Ilandclstag, Neue
Friedrichstrasse, Berlin.
Sparrow, Alexander, Liverpool.
Spens, J. A., 169, West George Street, Ghisgow.
Spiers, Dr. Benjamin Morel, Dunkerque.
Squire, Andrew, LL.D., Perry Payne Building, Cleveland, Ohio, U.S.A.
Standard Steamship Owners* Protection and Indemnity Associa-
tion, Limited, 9, Fenchurch Avenue, London.
Stearns, Charles, Banningan Building, Providence, U.S.A.
Stern, J. L. de, Advocate, Rotterdam.
Stevens, Hiram S., St. Paul, Minnesota, U.S.A.
Stocquart, Charles A. Emilb, D.C.L., Docteur en droit, 55, Rue de
la Longue Haie, Brussels.
Stoddard, Rev. Dr. C. A., 156, Fifth Avenue, New York.
Stollmever, Conrad F., Port of Spain, Trinidad.
Stokes, James, 49, Cedar Street, New York.
Strauss, Hon. Oscar, LL.D., L.H.D., 42, Warren Street, New York.
Strong, Rt. Hon. Sir Henry, Chief Justice of Canada, 161, Argyle
Avenue, Ottawa, Canada.
Stroud, F., 2, New Court, Lincoln's Inn, London.
Stubbs, Charles, M.A., LL.D., 3, Paper Buildings, Temple, London.
Sulzbach, Gebriider, Frankfort-on-the-Main.
SusE, Dr. T., Hamburg.
Takahashi, Sakuy6, Prof., Tokio.
Temper LEY, Henry, King Street, Quayside, Newcastle-on-Tyne.
Thompson, Seymour D., LL.D., 35 and 37, Nassau Street, New York.
Thornton, Charles S., Chicago, U.S.A.
ToMKiNS, Dr. F. J., M.A., Central House, 85, Granville Street, Halifax,
Nova Scotia.
Tompkins, Hamilton B., LL.B., 229, Broadway, New York.
Trabue, Edmund F., Columbia Building, Louisville, Kentucky.
Trueblood, Dr. B. F., 3, Somerset Street, Boston, Mass., U.S.A.
Tucker, Henry St. George, Professor, Wasliington University.
Tyler, Prof. Morris F., Yale University, New Haven, Conn.
Ulrich, Rudolf, Internationaler Transport- Versicherungs-Verband, Reich-
stags-Ufer 16, Berlin.
. United Kingdom Mutual Steamship Assurance Association,
9, Gt. St. Helen's, London.
( xxvi )
Valbry, Jules, Professeur & la faculty de droit k rUniyersite, Montpellier.
Vallance, C. B., Liverpool.
Verein Hamburger Assecuradeure, Hamburg.
Vbrein Hamburger Rheder, Hamburg.
Verney, F. W., Siamese Legation, 21, Ashbom Place, London.
Vickers, Wm. W., Toronto.
ViLLiERS, Rt. Hon. Sir J. H. DE,K.C.M.G., Chief Justice of Cape Colony,
Capetown.
Walker, William A., 13, William Street, New-York.
Walton, Clifpford S., 1731, P. Street, Washington.
Walton, Hon. Sir Joseph, Judge of the High Court of Justice, London.
Ward, H. G., 160, Broadway, New York.
Watt, Alexander, Glasgow.
Webster, Wm. King, 41, Kidbrook Park Road, Blackheath.
Werotts, R. Schmitz, 100, Redcliflfe Gardens, South Kensington, London.
West of England Steam Shipowners' Protection and Indemnity
Association, 50, Lime Street, London.
Wstmorb, Edmund, 34, Pine Street, New York.
Wheeler, Hon. Everitt P., LL.D., 21, State Street, New York.
White, J. Dundas, M.A., LL.D., 3, Paper Buildings, Temple, London.
White, John Bell, 2, Paper Buildings, Temple, London.
Whitelock, G., 701, Guardian Trust Buildings, Baltimore, U.S.A.
Wickstbbd, R. J., Ottawa City, Canada.
Wilson, R. W. Rankine, 18, Bardwell Road, Oxford.
Woermann, Adolph, 23-27, Gr. Reichenstrasse, Hamburg.
Wood, W. Martin, 2, Girdlers Road, Brook Green, London, W.
WooLSEY, Prof. Theodore S., New Haven, Conn.
Woolworth, Hon. J. M., LL.D., First National Bank Building, Omaha,
Nebraska.
Wuppesahl, C, Bremen.
Young, T. C, 19, Montgomerie Drive, Glasgow.
( xxvii )
OFFICERS OF THE GLASGOW CONFERENCE.
The Hon. Samuel Chisholm, LL.D., the Lord Provost of Glasgow.
The Right Hon. Lord Alvkrstone, Lord Chief Justice of England,
Hon. President of the Association.
Scotland: The Right Hon. J. B. Balfour, Lord President of the Court of
Session.
Efigiand: The Hon. Mr. Justice Barnes, I , ,^ ,,. , ^
TTie Hon. Mr. Justice Bruce, ^^ ^« High Court of Jus-
The Hon. Mr. Justice Phillimore, ) °^' London.
Mr. Thomas Barclay, formerly Chairman of the British Cham-
ber of Commerce, Paris.
Denmark : Dr. HiNDENBURG, Legal Adviser to the Danish Government
France: Dr. Paul Govare, Avocat II la Cour d'Appel, Paris.
Belgium: Monsieur Louis France, Avocat, Secretaire general do Comite
maritime International, Antwerp.
UniUdStata: Mr. Cephas Brainerd, Counsellor at Law, New York.
Canada : Mr. F. P. Walton, Advocate, Professor of Roman Law and Dean
of Faculty of Law in M'Gill University, Montreal.
James Muirhead, i
James D. Dalrymple, \ Glasgow.
William George Black, I
J. G. Alexander, LL.B., Tunbridge Wells.
G. G. Phillimore, B.C.L., London.
( xxviii )
Members and otiters present at the Glasgow Conference.
Alexander, Joseph G., Tunbridge Wells.
Allan, Murison, Dairsie, near St. Andrew's, N.B.
Alverstone, Right Hon. Lord, London.
Anderson, J. B., Glasgow.
Angier, Captain, London.
Arnold, W., London.
Balfour, Right Hon. J. B., Edinburgh.
Bannatyne, James, Glasgow.
Barclay, Thomas, Paris.
Barnes, Hon. Mr. Justice Gorell, London.
Bens a. Professor Enrico, Genoa.
Bell, E. S. Moberly, London.
BiNNiE, D. D., Glasgow.
BiRRELL, H. H., Glasgow.
Black, William G., Glasgow.
Brainerd, Cephas, New York.
Brodib, W., Glasgow.
Brown, A. Scott, Glasgow.
Brown, R. Weir, London.
Brown, Richard, Glasgow.
Bruce, Hon. Mr. Justice, London.
Burns, Patrick, Kilwinning, Ayrshire.
Butler, W. H., Liverpool.
Byrne, Chas., Glasgow.
Cameron, G. J., Glasgow.
Campbell, R. V., Edinburgh.
Carr, Ralph, Newcastle-on-Tyne.
Carver, T. G., K.C, London.
Chapman, George, Glasgow.
Charteris, A. H., Glasgow.
Chrystal, J. G., Glasgow.
Clancy, R. C, Glasgow.
Clark, Robert, Glasgow.
Clyde Steamship Owners Association, Glasgow.
Coldstream, J. C, Edinburgh.
Cormack, J., Leith.
Cowper, J. B., Glasgow.
Cox-Sinclair, E. W. S., London.
Craig, Archibald, Glasgow.
Craig, Sterling, Edinburgh.
Crawford, David, Glasgow.
Cross, Thomas, Glasgow.
Cunningham, F., Boston, U.S.A.
Darby, Dr. W. Evans, London.
( xxix )
Dent, John, Newcastk-on-Tyne.
Dickie, David, Glasgow.
Dickie, Robert, Glasgow.
Dickson, Hon. C. Scott, Edinburgh.
DuNLOP, N., Glasgow.
Eetsn, Edward van, Antwerp.
Elmslib, K. W., London.
Estenos, Carlos G., Peruvian Consul, Glasgow.
Far&elly, M. J., Pretoria, S.A.
Fleming, S., Glasgow.
Foote, J. A., K.C., London.
Forbes, J. M., Glasgow.
Franck, Louis, Antwerp.
Fulton, James, Glasgow.
FVFE, A. P., Glasgow.
Fyfe, F. B., Glasgow.
Gardiner, F. C, Glasgow.
GovARE, Dr. Paul, Paris.
Gray, George M., Glasgow.
Griffiths, Austin E., Seattle, Washington. U.S.A.
Haldane, R. B., K.C., M.P., London.
Harrison, Hon. Lynde, New Haven, U.S.A.
Henbnson, J. G., Glasgow.
Heyne, W. Davidson, Liverpool.
Hill, Gray, Liverpool.
Hindenburg, Dr. A., Copenhagen.
Hogarth, H., Glasgow.
HoziER, Colonel H. M., London.
HuTTON, James, Glasgow.
KiNCAiRNEY, Lord, Edinburgh.
King, Walter, Glasgow.
Laird, J. M., Glasgow.
Langlois, Jacques, Bnissels.
Leck, D. C, London.
Lee, R. W., Oxford.
Leval, Gaston de, Brussels.
LiLBURN, Jas., Glasgow.
Lockhart, R. a., Edinburgh.
Lowndes, Walter, Liverpool.
McCowAN, David, Glasgow.
McEwEN, M. R., Glasgow.
Mackenzie, F., Glasgow.
Mackenzie, James, Glasgow.
MacLellan, J. F., Glasgow.
MacLeod, Peter, Glasgow.
Mann, William, Glasgow.
Miller, T. R., London.
Miller, W. Galbraith, Edinburgh.
Mitchell, A. A., Glasgow.
( XXX )
Mitchell, Andrew, Edinburgh.
Mitchell, W. J., Glasgow.
MoNCRiEFF, W. G. Scott, Glasgow.
MowAT, R. A., London.
Mure, Sir Andrew, Edinburgh.
Murray, Right Hon. A. Graham,' Lord Advocate, Edinburgh.
Murray, Dr. David, Glasgow.
Murray, J. Bruce, Glasgow.
NiVEN, R., London.
Ogg, Robert, Glasgow.
Paton, G. G., Glasgow.
Phillimore, G. G., London.
Phillimore, Hon. Mr. Justice, London.
Raeburn, W. H., Glasgow.
Renton, A. Wood, London.
Robertson, William, Glasgow.
RosENGARTEN, J. G., Pennsylvania, U.S.A.
Roxburgh, J. A., Glasgow.
RfTNDEU., R. Cooper, Glasgow.
Russell, Robert, Glasgow.
Sanderson, F. R., Edinburgh.
Scholefield, Arthur, Newcastle-on-Tyne.
Scott, C. M., Glasgow.
Sewell, J. G., Glasgow.
Sherwood, F. W., London.
Simons, Philip B., Glasgow.
Smith, W. R., Washington, D.C.
Snape, Thomas, Liverpool.
SoMBRViLLE, Henry, Glasgow.
Spens, J. A., Glasgow.
Stewart, C. Grainger, Edinburgh.
Taylor, J. M., LL.D., Glasgow.
Temperley, Henry, Newcastle-on-Tyne.
Tucker, H. St. George, Washington University.
Turnbull, R. G., Glasgow.
Umpherston, F. a., Edinburgh.
Verney, F., London.
Walker, W., Glasgow.
Walton, Professor F. P., Montreal.
Walton, Joseph, K.C, London.
Watt, Alexander, Glasgow.
White, J. Dundas, London.
Wicksteed, R. J., Ottawa, Canada.
Wilson, J. Dove, Aberdeen.
Wilson, R. W. Rankine, Oxford.
Wood, W. Martin, London.
WvLTE, Robert, Glasgow.
Young, Lord, Edinburgh.
Young, T. C, Glasgow.
( xxxi )
GLASGOW CONFERENCE RECEPTION COMMITTEE.
Chaimun.
The Hon. the Loed Provost of Glasgow.
The Hon. J. C. Burns.
Vict-Chairman,
David Murray, Esq., LL.D.
Members of Committee,
The Hon. the Lord Provost of Glasgow.
David Murray, Esq., LL.D.
William Guthrie, Esq., LL.D., Sheriff-Substitute of Lanarkshire, Repre-
sentative of the Faculty of AdTocates, Edinbvgh.
Robert Gourlay, Esq., Dean of Guild of the City of Glasgow, Repre-
sentative of the Merchants' House of Glasgow.
James Macfarlane, Esq., Deacon Convener of the Trades' House of
Glasgow, Representative of the Trades' House of Glasgow.
J. M. Taylor, Esq., LL.D., Representative of the Faculty of Procurators,
Glasgow.
John A. Spens, Esq., Representative of the Chamber of Commerce,
Glasgow.
J. G. Chrystal, Esq., Representativeof the Association of Underwriters and
Insurance Brokers, Glasgow.
The Hon. J. C. Burns, Representative of the Glasgow Ship Owners^
Association.
J. D. Clink, Esq., Representative of the Clyde Sailing Ship Owners'
Association, Limited.
John Bruce Murray, Esq., Representative of the Clyde Steam Ship Owners'
Association.
James Muirhead, Esq.,
James Dalrymple Duncan, Esq.,
William George Black, Esq.,
Hon Joint Secretaries,
( xxxii )
Publications received since last Report,
Baldwin, Hon. Simeon E., LL.D. : —
The Entry of the United States into World Politics as one of the Great
Powers.
The Supreme Court and the Insular Cases.
Blacks and Whites in West Africa, by H. R. Fox Bourne.
Bulletin Officiel, ix* Congr^s Universel de la Paix.
Correspondance bi-mensuelle, by the Bureau International permanent de la
Paix.
Di una Corte Marittima Intemazionale par giudicare in materia di collisione,
by Salvatore Raineri.
Henry Chauncey v. The Republic of Chile, by Clifford S. Walton.
Herald of Peace (Journal of the Peace Society).
International Maritime Committee. Report of the Paris Conference, 1900.
Journal du Droit International Prive ct de la Jurisprudence Compar^e, redige
par M. Kdouard Clunet.
Law Magazine and Review.
Les Etats Unis d'Europe (Journal de la Ligue Internationale de la Paix et de
la Libertd).
Pro Armenia.
Revue Generate de Droit International Public.
Scottish Law Review.
San Francisco Chamber of Commerce Report.
The Aborigines* Friend (Journal of the Aborigines* Protection Society).
The Native Labour Question in the Transvaal.
The Peacemaker (Journal of the Universal Peace Union).
Twenty-third Annual Report of the American Bar Association.
Voice of India.
The Secretaries will be glad to receive copies of any books or pamphlets on
International Law written by Members of the Association.
A certain number of copies of the Reports of the following Conferences
remain at the office, and can be sent to Members applying for them : —
4th, Bremen, 1876.
6th, Frankfort-on-the-Main, 1 878.
9th, Cologne, 1 88 1,
nth, Milan, 1883.
1 2th, Hamburg, 1885.
13th, London, 1887.
14th, Liverpool, 1890.
15th, Genoa, 1892.
16th, London, 1893.
17th, Brussels, 1895.
1 8th, Buffalo, 1899.
19th, Rouen, 1900.
The International Law Association.
TWENTIETH CONFERENCE.
GLASGOW, 1901.
PROCEEDINGS.
TUESDAY, aoTH AUGUST.
The members of the Conference assembled at 10 a.m. in the
Council Chamber of the Municipal Buildings, Glasgow, under
the presidency of the Honourable the Lord Provost of the City
of Glasgow (SAMUEL CHISHOLM, Esq., LLD.), who delivered
the following address of welcome : —
My Lords and Gentlemen,
Will you first of all permit me to thank you, as I do most
sincerely, for giving me the opportunity of being present at the
beginning of the Conference of this Association, whose objects
have so important a bearing on the commercial and general
relations of the nations of the world. Important and beneficent
though these objects are, they are confessedly not of a kind to
arrest the attention and compel the regard of the ordinary average
citizen. The breath of the nostrils of such an Association as
this is not notoriety nor is it applause, and so this Association
has been contented for more than twenty years with a quiet
persistency to pursue the even tenor of its way, satisfied with the
thought that it has been contributing somewhat to the happiness
and comfort of mankind, even although its deeds have not been
emblazoned in the eyes of the world. Gentlemen, I think the
very existence of such an Association as this is a most interesting
and striking fact. Here we have a body of men, undoubtedly,
( 2 )
confessedly, the best and highest trained intellects in the world,
devoting their energy and spending their time in doing what they
possibly can to remove, or at all events, if they cannot remove,
to reduce occasions of controversy and strife, to make more easy
and pleasant the intercourse and interchange of fellowship and
commerce between the respective nations of the world.
I think that fact itself is one that is well worthy of
being noted merely as a fact There are a great many
objects which you have in view so interesting and
important as to invite a passing reference, but I feel that
it would be simply impertinent on the part of a layman like
myself to say one single word or detain you for a single moment
Allow me simply to perform the duty which devolves upon me of
offering you, as I do with all my heart, in the name of the Cor-
poration, a most sincere and cordial welcome to our City. That
welcome is not one whit the less cordial and sincere that you
may possible detect in it the slightest shade of reproach. You
have been in existence for twenty years. You have crossed the
English Channel again and again. You have crossed the wide
Atlantic, and roamed among the cities of the sunny feouth, but
you have only discovered yesterday that there was a kingdom
called Scotland — that there were hills beyond Cheviot and lands
beyond Tweed. And so we welcome you, late though you are, all
the more cordially that you have come at last I express the
hope that the intensity of your devotion to duty will not hinder
you from spending some little time to see our City itself, to see
its multitudinous industries and its municipal enterprises; and,
my lords and gentlemen, if men like you can stoop to what the
vulgar may call levity, I might whisper in your ear, what possibly
some of you have never heard of, that there is in our midst an
Exhibition which is drawing its millions from all quarters of the
world, and to which I hope that some even of you may find a
quiet moment to visit, just as we Scots people say, " like the lave."
If you do so, I can assure you that I can promise you an interest-
ing hour. I desire again to offer you, in the name of my
fellow-citizens, a most cordial welcome to our midst
( 3 )
In reply, the Right Honourable Lord Alverstone, Lprd
Chief Justice of England, Honorary President of the Association,
spoke as follows : My Lord Provost, my Lords and Gentle*
men, it is impossible, my Lord Provost, to thank you sufficiently
for the charming and genial way in which you have welcomed
this Association to this great City of Glasgow. You have
properly, my Lord Provost, reproached us for our neglect of
Scotland (we never thought that we should receive such a
welcome as we have received in this City), a neglect not for
twenty years but for nearly thirty years, because the Associa-
tion was founded in 1873. My Lord Provost, I have in the
first place to express my great regret, and, I am sure, his
great regret, that the Lord Chancellor should not be present
in person to thank you on behalf of the Association at this
Congress at which he had hoped to preside. When he was
good enough to undertake, and promised to come to Glasgow,
his acceptance was made contingent upon the sitting of Parlia-
ment, which it was hoped would be adjourned at an earlier d.ate,
and I am quite sure that no one will regret more than himself,
except the members of the Association and the gentleman who is
now addressing you, that public duties should have prevented
him from coming here to fulfil his engagement My Lord
Provost, you have said quite truly that this is the first occasion
on which we have visited Scotland. I am sure that if we are as
kindly treated in oth^r cities of Scotland as you have treated us
to-day we shall be very glad to repeat our visit, and I believe
that there are many members of the Association who, after
passing a few hours of hard labour in discussing the important
questions that we hope to consider to-day, will not resist the
temptation that you have given them in your invitation to enjoy
themselves in one of the numerous ways which this City affords.
It is, in my opinion, appropriate that an Association which deals
with International Law should meet in Scotland. I had the
privilege for many years of being associated in Scotch cases with
my distinguished friend who sits on my left,* and who occup'es
» The Rt. Hon. J. B. Balfour, Lord President of the Court of Session.
B -2
( 4 )
the highest judicial position in Scotland, and worthily fills it I
know, from the little I gleaned of Scotch law, to what a large
extent the principles of Roman civil law find their place in the
modem development of Scottish jurisprudence, and it is not at
all inappropriate that we, an Association engaged in discussing
principles of law applicable in all countries, countries which have
drawn their legal inspiration from different sources, should meet
in a country which has always maintained a reputation for great
lawyers and great jurists. I may have occasion in the course of
my duties again to refer to this subject My pleasant duty at
present is to thank you most cordially on behalf of the members
of the Association for the welcome you have given us, and to
assure you by anticipation that if in some few years to come the
City of Glasgow should be willing to receive us we shall be only
too glad to come again. (Applause.) I shall now call upon the
Chairman of the Executivje Council, the Honourable Mr. Justice
Phillimore, to propose the list of officers.
The Hon. Mr. Justice Phillimore, as Chairman of the
Executive Council, then proposed the following as Officers of
the Conference :
Hon, President: —
The Hon. The Lord Provost of Glasgow.
President: —
The Right Hon. Lord Alverstone, Lord Chief Justice
of England, Hon. President of the Association.
Vice-Presidents : —
Scotland— 1\it Right Hon, The Lord President of the
Court of Session; Lord Young; Lord Kin-
CAIRNEY.
( 5 )
England— TYit Hon. Mr. Justice Gorell Barnes; The
Hoiu Mr. Justice Bruce ; The Hon. Mr. Justice Phil-
limore; Mr. Thomas Barclay, formerly Chairman
of the British Chamber of Commerce, Paris.
Denmark — Dr. Hindenburg, Legal Adviser to the Danish
Government
France — Dr. Paul Gov are, Avocat k la Cour d'Appel,
Paris.
^^i/m— Monsieur Louis Franck, secretaire g^n^ral du
Comitd Maritime International, Antwerp.
United States — Mr. Cephas Brainbrd, Counsellor at
Law, New York.
Canada — Professor F. P. Walton, Advocate, Professor of
Roman Law in M'Gill University, Montreal
Secretaries —
Messrs. James Muirhead, J. D. Dalrymple, W. G.
Black, Glasgow; J. G. Alexander, LL.B., Tun-
bridge Wells \ G. G. Phillimore, B.C.L., London.
The motion, on being put to the Meeting by the Lord
Provost, was unanimously adopted.
The Lord Provost : I declare the motion of Mr. Justice
Phillimore accepted unanimously, and now I have very great
pleasure in vacating the Chair that the Lord Chief Justice may
occupy it, and I have to thank you for the honour you have done
me in appointing me to the honorary position that you have
been good enough to do.
The Minutes of the last day's proceedings of the Conference
held at Rouen in 1900 were presented by Mr. J. G. Alexander,
Hon. General Secretary. They were taken as read, and were
approved, and signed by the President.
( 6 )
Mr. Alexander stated that expressions of regret for non-
attendance had been received from the following among other
gentlemen : —
Baldwin, Hon. Simeon E., Judge of Supreme Court of
Errors, Connecticut, President of the Association, and
President of the Rouen Conference.
The Right Hon. the Lord High Chancellor (the Earl
OF Halsbury).
Adam, Lord, Edinburgh,
AsPiNALL, Butler, Esq., K.C., London.
AsQuiTH, Right Hon. H. H., London.
AiTTRAN, Mons. F. C, Marseilles.
Bancroft Davis, Hon. J. C, Washington.
Bard, M. A., Paris.
BiGHAM, Hon. Mr. Justice, High Court of Justice,
England (a Vice-President of the Rouen Conference).
BoDiNGTON, O. E., Esq. (U.S. Federal Bar, English Bar
and French Licencid k Droit), Paris.
Breen, W. R., Esq., Fort Wayne.
Brunard, Mons. H., Brussels.
Burns, Hon. J. C, Glasgow.
Cheramy, Mons., Paris.
Cheyne, Sir John, Edinburgh.
CoRSi, Professor the Marchese, Pisa.
Daguin, Dr., Paris.
Davey, Right Hon. Lord, Haslemere.
Duguid, Mons. P., Bordeaux.
Glover, Sir John, London,
GouBAREFF, Pfof., Odessa.
GouDY, Prof. H., Oxford.
Hamilton, J. A., Esq., K.C., London.
Handelskammer, Leipzig.
Hartlepool Shipowners' Society.
Hill, F. W., Esq., D.CL., U.S.A.
Holland, Prof., Oxford.
( 7 )
Institute op London Underwriters, London.
Kelvin, Right Hon. Lord, London.
Kennedy, Hon. Mr. Justice, High Court of Justice,
England (President of the Buf&lo Conference).
Kinnear, Lord, Edinburgh.
Kyllachy, Lord, Inverness-shire.
Labori, Mattre, Paris.
Lachau, Mons. Charles, Paris.
Laing, F., Esq., K.C., London.
Lambermont, Baron, Brussels (Hon. President of Brussels
Conference).
Liverpool and London Steamship Protection Asso-
ciation.
Liverpool Sailing Shipowners* Mutual Protection
and Indemnity Association.
Liverpool Underwriters* Association, Liverpool
London Association of Average Adjusters.
Low, Lord, Berwickshire.
Mackay, Aen. F. G., Esq., Edinburgh.
M*Lar£n, Lord, Edinburgh.
Maeterlinck, Mons., Antwerp.
Marais, Dr. Octave, Rouen (a Vice-President of the
Rouen Conference).
Mathew, Hon. Mr. Justice, London.
MoNCRiEFF, Lord, Edinburgh.
Morgan, A. F., Esq., Leamington.
OuDART, Mons. A., Paris.
Passez, Dr. Ernest, Paris.
Passy, Mons. Fr£d£ric, Paris.
Pearson, Lord, Edinburgh.
Pic, Mons. P., Lyons.
Rawle, Francis, Philadelphia.
Right Hon. the Master of the Rolls, London.
RowE, Professor L. J., United States Codification Com-
mission, San Juan, Porto Rico.
ScRUTTON, T., Esq., K.C., London.
( 8 )
Shand, Right Hon. Lord, LondoiL
SiEVEKiNG, Dr. F., President of the Hanseatic Court of
Appeal, Hamburg (ex-President of the Association).
Stoddard, Rev. Dr. Chas. A., New York.
Stormonth Darling, Lord, Edinburgh.
ToMKiNS, Dr. F. J., Canada,
Trabue, K F., Esq., Louisville, U.S.A.
Trayner, Lord, Edinburgh.
Ulrich, Herr Rud., Berlin.
Von Scherzer, His Excellency Dr. Karl, Vienna.
VoN SiEBOLD, Baron, Berchtergader, Bavaria.
Wheeler, Hon. Everett P., New York.
WijK, Olof, Esq., Gothenburg.
WooLSEY, Prof. T. S., New Haven, Conn.-
Wright, Hon. Mr. Justice, London.
The President then delivered his inaugural address as
follows : —
My Lords and Gentlemen,
It is no mere affectation to say that it is with mingled
feelings that I attempt to address you this morning. It is always
a privilege and a pleasure to be allowed to take any part in the
proceedings of the International Law Association, and I am
thankful to think that it is not the first time that I have had the
pleasure of presiding over its deliberations -, but on this occasion
we had hoped, as I indicated when I was replying to the graceful
welcome of the Lord Provost, to have had the privilege of the
presidency of the Lord High Chancellor of Great Britain, and I
should like to say that in my judgment nothing could more
advance the interests of this Association than if at some time or
other we could procure his presence. When we think that now
for nearly fifteen years he has presided — I may be allowed to say,
in his absence, with the greatest dignity and ability over the
highest Court of Appeal in the United Kingdom, and that he
possesses the rare knowledge that comes to one who has been for
so many years a Cabinet Minister, we should gladly welcome him
( 9 )
as President Failmg his presence I received the request of the
Members of the Council of the Association asking me to fill his
place. I say again that had I had the time and the opportunity
of preparing some address worthy of this Association nothing
would have given me greater pleasure. When I read the
admirable address, as I have done, of our President of the last
Conference, Judge Baldwin, and some of the early addresses
which have been delivered at these Conferences, I cannot help
being struck with the learning and study which has been brought
to bear upon their preparation, but of course it is no mere
common apology to you when I say that in the space of
something like three or four days in the North of Scotland, with
other pursuits to follow which possibly presented some attractions,
it was not easy to apply one's mmd to any definite and distinct
subject, and therefore I must content myself to-day by asking you
to listen to a few observations made upon the spur of the
me>ment upon the subjects which are coming before you for
discussion. I can assure those who hear me that my observations
are not the carefully prepared impromptus of some of our friends
from the United States, but are the observations that occur to me
in thinking over, last night and this morning, the topics that have
been put upon the agenda paper. I have one qualification which
I can never lose, for which I shall always be grateful, and
which perhaps qualifies me to a small degree to speak upon
some of the matters that are down for discussion, and that is this
— that for over twelve and a half years I had to study international
law, not merely for the purpose of educating my mind, or for the
purpose of adding to the little knowledge I possessed of the
subject originally, but I had to consider it from the point of view
of its practical application to concrete cases. With our empire
extending all over the world, and British subjects meeting the
nationals of every other nation, very difficult and important
questions were constantly arising between the Government of her
late Majesty and the Governments of foreign Powers, and one
then sees international law from its practical side and one learns
to appreciate more than other people appreciate, I venture to
( lo )
think, the great benefits bestowed upon humanity and the
additions made to legal knowledge by those men who are willing
to study international law from the philosophical and historic
point of view. I have said before — I said it in this city and I
repeat it — that I often think we do not pay enough honour to
those men, who for no reward for themselves, and having no
posts or offices to gain, devote themselves to the study of
international law — men like Professor. Dicey, and our late friend
Mr. Hall, and our friends -Professors Holland and Westlake and
others who are still living, and I think that we are too much in
the habit of taking for granted and accepting without acknow-
ledgment the debt that we owe to those gentlemen, to the men
who have devoted the best part of their lives and time to study
those subjects. Gentleimen, it is rather curious that I should have
happened by chance to be speaking again of international law in
Glasgow, because Glasgow is the only city that ever honoured me
with an invitation to deliver an address on international law. Jn
the year 1896, on the invitation of the Glasgow Juridical Society,
I had the privilege of delivering an address in the Glasgow
Athenaeum, when I made the acquaintance of many men who
took [an interest in these matters. Now, gentlemen, among the
first of the subjects that is down for discussion is our old friend —
I am inclined to call it — the subject which from the very
beginning of this Association has always taken a very prominent
place, the subject of international arbitration ; and although it is
no longer necessary, as some writers of papers on international
law seem still to think, to go back to the very beginning, I hope
that this Association will never lose touch of the subject, but
will always endeavour to keep before the public mind not
only what is the condition at the moment of matters with regard
to International Arbitration, but the advances that have been made
since note was last taken of its progress. Those of us who were
present in Brussels will remember two features in connection \^ith
International Arbitration which were prominently brought before
the then Conference; it was in the year 1895, six years aga
There were some of our members who hoped and believed that
( " )
the time might come when there might be established a complete
College of International Jurists and Arbitrators, who should
devote the greater part of their lives, when qualified, to dealing
with such matters, and who should constitute a permanent Court
to which all the nations of the world could appeal I am sorry to
say that, not being so sanguine as I ought to have been in those
days, I rather discouraged the idea; and it is a warning to me
how one ought to hesitate to discourage ideas, however advanced
they may seem, and however impossible of realisation to one's
own mind, because, as you all remember, since that Con-
ference, in the year 1899 there was held the great Conference at
the Hague, which to a very large extent adopted those ideas and
fulfilled those aspirations. I am not going to discuss before you at
all, to-day, the results of the Hague Conference, or the result of
its labours. I believe that reference will be made to some of its
results in some of the papers to be read at this Congress ; but at
least it has rendered it quite possible that, with the advance of
civilisation and with the increased confidence that may be felt in
such a tribunal, there should come out of the Conference at the
Hague that very class of college or institution which Sir Edmund
Hornby sketched less than eight or nine years ago. The other
point which formed the subject of discussion in 1895 was the very
elaborate scheme for arbitration by the very distinguished lawyer
whose name has already been mentioned in this room. Professor
Corsi, who, far in advance of other men of the day, had himself
elaborated a scheme of procedure which other nations might
adopt. It is interesting to note that some of the ideas and
proposals that Professor Corsi advocated have found their
place — of course, in a different form — in some of the articles
in the Convention at the Hague; and this Association, which
twenty-eight years ago at its first meeting proposed a resolu-
tion in favour of International Arbitration, has at any rate
the satisfaction of feeling that the ideas which were then
promulgated by very few supporters now find a growing support
in all the nations of the civilised world. There is one other
instance in connection with attempts to bring about International
( 12 )
Arbitration which has not received sufficient notice. I believe
that it also will be referred to in one of the papers that will be
read to-day, and I had made up my mind, when I was asked to
address this meeting, to call the attention of the Members of the
Association to it, and I sent to the Foreign Office for a copy of
the print of the original document, that I might have the privilege
of citing one or two passages to the Association. I refer to the
general treaty of arbitration that was made between Great Britain
and the United States in the year 1897. Gentlemen, I do not
intend to go through that treaty in detail or to say more than
this, that it has always seemed to me that it embodied more of
the principles on which a general treaty of arbitration might
proceed than any other State paper which has ever been published
(hear, hear), and I should wish here to pay my personal tribute,
and I think, in a humble way, to do a tardy act of justice, to the
great man who on behalf of Great Britain negotiated this treaty.
I remember very well being irritated to the last degree, at the
time that this treaty was signed, at the gross injustice of the
remarks made in certain sections of the British Press respecting
the part played by the Prime Minister, Lord Salisbury, in con-
nection with it. He was spoken of as having had it forced upon
him. It was suggested that he had unwillingly assented to it
Now, I speak of what I know, because it was my privilege to
have a good deal to do with the preparation — the mere wording
— and the drafting of the document, and I say it publicly and
advisedly that no man ever worked more heartily in the cause of
international arbitration than Lord Salisbury did in the promotion
of that treaty. (Applause.) There is another man whose name
must alwa3rs be renowned and revered, who feels, I am sure, the
failure of the final success of the treaty more keenly perhaps than
any — I refer to the great man who has for years represented us
so ably at Washington — Lord Pauncefote — and who, at the
Hague, represented Great Britain with distinguished success.
Now, gentlemen, I hope that those who write in future upon the
subject of international arbitration and of the possibility of
conventions between two nations, will not let slip from their
( 13 )
memory what there is to be learned from this State document,
and to show you that I am not forming an opinion of it founded
upon the fact that I had some small connection with it, or that I
know how much the Prime Minister for Great Britain did to
promote its success, I should like to read to you two or three
sentences from the message in which it was presented to the
Senate of the United States of America by President Cleveland,
and I think you will agree with me that if the treaty could be
spoken of in such terms by so great a man as President Cleveland
it is a document that people may fairly study and see whether it
does not deserve to be considered as a fresh point of departure.
The following is the passage : —
** The provisions of the Treaty are the result of long and patient delibera*
tion, and represent concessions made by each party for the sake of agreement
upon the general scheme. Though the result reached may not meet the views
of the advocates of immediate unlimited and irrevocable arbitration of all
international controversies, it b nevertheless confidently believed that the
Treaty cannot fail to be everywhere recognised as making a long step in the
right direction, and as embodying a practical working plan by which disputes
between the two countries will reach a peaceful adjustment as a matter of
course, and in ordinary routine. The example set and the lesson furnished by
the successful operations of this Treaty are sure to be felt and taken to heart,
sooner or later, by other nations, and will thus mark the beginning of a new
epoch in civilisation."
Gentlemen, it is no part of my duty to discuss the reasons why
unfortunately the Senate of the United States did not see fit to
adopt the views which were so eloquently expressed by President
Cleveland. But this I may say, because I know it, that, at the
time, there was a great body of the best and most enlightened
men in the United States who regretted the failtu-e of this treaty,
and I hope and trust it may still be a starting point and afford
common ground on which the citizens of the United States and
the subjects of His Majesty the King may be able to meet and
adjust differences, should they ever unhappily arise. Gentlemen,
I have another reason for referring to this subject and desiring
you to let me, so to speak, bring up to date the position of matters
in connection with international arbitration. This subject has
received further development in the present year, and I rejoice to
( 14 ;
know that Mr. Barclay, a distinguished President of the British
Chamber of Commerce in Paris, not only a distinguished English
lawyer, but respected by the whole Bar of France, is going to
bring a motion before the Association to-day. I hope some of
you had an opportunity of reading Mr. Barclay's article in the
•Fortnightly.'* I remember reading the article with great
interest ; it suggested that the present time is an opportune time
for a general treaty of arbitration between the Republic of France
and the Empire of Great Britain. Well, gentlemen, if France and
Great Britain could only see their way to a general treaty of
arbitration, two natio;is that are not bound by the same ties as
the ties between the United States and Great Britain referred to
by President Cleveland — if the time is opportune for such a treaty,
there could not be a more striking example to the world. I am
satisfied that, whether successful or not, it is a matter of great
congratulation for this Conference sitting here in Glasgow that
things should have so advanced that it is possible to discuss,
in a serious way and with the hope of some result in the
near future, the question of an arbitration treaty between' two
countries between which, while they have been for many years in
close alliance, still from time to time questions do arise which
might lead to trouble if they were not settled in an amicable way.
I apologise for having detained you on that subject, but it is one
which is as worthy as any of discussion and development ; and
although we cannot hope that the aspirations of the most ardent
will be fulfilled, we can at any rate do something to promote it
from a practical point of view.
Passing to another subject, I refer to the fact of a connection
which I think exists between Scottish law and French law,
and I should like on behalf of the Association to express our
gratification that Professor Walton, the very distinguished
Professor of the McGill University, Montreal, is proposing
to read us a paper on that subject I hope that the Lord
President or the Lord Advocate will be here when that paper
is read, and I am quite sure that they will not only be interested
* * Fortnightly Review,' June 1901, p. 1022.
( 15 )
but will enlighten us by a discussion in a way that those who
are not so well acquainted with Scottish law will not be able to
do. I shall not attempt to say anything of any importance
upon the thorny and difficult question which I see is down for
discussion in the name of our distinguished friend, Mr. Justice
Phillimore, and on which papers are to be read by the Sheriff of
Berwickshire ^ and Dr. Goudy — I mean on the Marriage Laws.
All I would say is this, that some time ago, namely, on the
occasion that I referred to when I addressed the Juridical
Society in Glasgow, I called attention to certain conditions which
I think ought to be fulfilled in order that there might be
recognition, as far as civilised nations were concerned, of the
contract of marriage. I am quite sure that whatever be the
propositions put before us by Mr. Justice Phillimore they will
be of great value to the Association. Now, gentlemen, I desire
to make one or two observations upon two very important matters
that are coming before this Conference. They are the inter-
national rules of Marine Insurance and the enforcement of
Foreign Judgments. In regard to Marine Insurance I am quite
sure the Lord Provost, if he were still here, would agree with
me that there is nothing in British law in respect of which
more good could be done by a commercial community than
establishing some code of Marine Insurance Law. This
Association has had no small success in this connection, because,
as I have had occasion to remark before, the York-Antwerp
Rules were the outcome of the work of this Association, and the
Association is only pursuing its object, namely, to codify and make
uniform international maritime law by following up the question
of Marine Insurance. Now, the position is extremely interesting
at the present time, and I would venture to say to those — I am
glad to think that they are becoming daily and yearly fewer in
number — ^who still think that Congresses of this kind do not do
' The Sheriff of Berwickshire (R. Vary Campbell, Esq., whose recent
death the Secretaries regret to report) did not present the paper of which
he had given notice, finding that the subject would be sufficiently treated by
Mr. Justice Phillimore and Professor Goudy.
( i6 )
much good, that if they would for a few minutes consider what is
the position of its work upon the law of Marine Insurance, they
would find a conclusive answer. At the Conference in Buffalo
in 1899 — one of the most successful we have ever had —
Mr. Carver, who is a mine of wealth in Marine Insurance
Law, propounded a series of rules with the endeavour to induce
and the hope of inducing the commercial nations of the world to
agree to a code of general marine insurance, general average and
contribution, matters to which I will not refer in detail, because
they will be the subject of a discussion. I am glad to know that
some of the American lawyers, who were present then, are in
this room to-day. These propositions were propounded by Mr.
Carver at Buflfalo, and considered by a very strong committee,
and among other members I may mention that perhaps one of
the greatest living authorities, Mr. Justice Mathew, was good
enough to take part in the discussion. They were considered
by that committee and reproduced again in a modified, altered,
and probably improved form. So amended they were presented
at Rouen, and reported upon by a Belgian Committee. The
report of the Belgian Committee has been commented upon by
Mr. Carver, and there will be laid before you a paper by
Mr. Ulrich of Berlin, and a subsequent report upon that by
gentlemen of great learning, and among them, M. Lejeune of
Antwerp, so that the Congress will have before them papers and
criticisms upon these proposals proceeding from many sources.
I perhaps might be allowed to announce — I am sure that the
members will hear it with pleasure — that Mr. Justice Gorell Barnes,
one of our most distinguished judges, has been good enough to
say that he will preside over the Conference on Marine Insurance
which takes place to-morrow. Now, gentlemen, I have run briefly
through most of these papers, and the subject occupied me a
considerable time last night and again this morning, and there is
one conviction that is forced upon my mind. I do not say that if
I were drafting the rules I agree altogether with Mr. Carver or
the Committee, but it is quite clear that from the criticisms which
have proceeded from France, Germany, Antwerp, and some other
( 17 )
Continental sources, there is still a good deal of divergence of
opinion. Now, gentlemen, if we are to achieve the most
desirable object of a uniform system everyone who enters into
the matter must be prepared to make concessions. It is no good
to attempt to establish a uniform system of Marine Insurance
Law if the representatives of any particular nation maintain
that their system must be adopted as a whole. I ventured to say,
many years ago when I was speaking on this subject in Glasgow,
that in my opinion the matter of the greatest importance
to business men is that whether a ship is loaded in Hamburg or
at Marseilles, or in Italy or India, or no matter what foreign
port, persons making the contract should know exactly what the
maritime documents mean, and what they involve, and the
underwriter to whom the documents are taken should know the
risks he has undertaken and on what basis he may have to pay.
I speak as a lawyer; but I am perfectly certain that if the under-
writer does not know clearly the risks he is undertaking he will
make the merchant pay a little higher premium because there is
a risk which he does not know, and therefore, in my opinion,
whether you give and take a little is not of so much importance
as that you should get uniformity, and I hope that in this
discussion, when we talk over the details of this matter, though I
can see that a good deal of concession may be necessary, we
must approach the subject from the point of view of trying to
come together and not from the point of view of trying to force
our views upon an unwilling majority. There is a vast deal to be
gained, and it is worth a sacrifice by the various nations who
cannot get their notions stereotyped. I would point out that the
world is growing smaller in this respect These contracts and
arrangements and bargains are made by telegram and telephone
— I may almost say all over the world. The destination of
cargoes which originally were going to one destination may be
changed, and you may have contracts supposed to be made
subject to one set of incidents subjected to another set All this
points to the great desirability of commercial men being able to
know what their contracts mean, and being able to take the
c
( i8 )
documents and leave their insurance contracts with them on the
basis of everyone understanding what they undertake, and of
there not being any difference whether the ship belongs to a
French, German, American, or British port Gentlemen, the
labour of those who have bestowed so much labour on this
subject ought not to be thrown away, and to anyone who takes an
interest in it I can commend the discussions which have taken
place, and hope that, even though they may not lead to con-
viction, they will clearly conduce to concession on both sides.
Gentlemen, the other subject on which I shall say a word or
two is the enforcement of Foreign Judgments. This subject was
discussed at Buffalo and subsequently at Rouen, and there has
been a Report by a Committee, which Mr. Foote, an international
lawyer of great repute, with the help of Mr. Cox-Sinclair and Mr.
Phillimore, has prepared, which is extremely useful Gentlemen, I
may perhaps be thought somewhat egotistical, but I do not see
any reason to depart from what I thought should be the principles
under which at any rate foreign judgments might be enforced
which I laid before the Juridical Society of Glasgow in 1895. I
said then : '^ Surely the time is ripe for an agreement to be made
between all civilised nations as to the mutual enforcement of
foreign judgments against the property of the defendants within
their jurisdiction, where at any rate the defendants have submitted
to the jurisdiction of the foreign Court and their cases have been
heard on the merits, where there is not any suggestion of fraud,
and where the rights enforced were recognised by the law of both
nations." Now, gentlemen, I have read that passage, because in
connection with this subject of foreign judgments I think there is
a matter which must be kept in view, however much you may
desire to enforce foreign judgments and see that they are enforced.
I speak now with the knowledge of what has happened during
the time that I had to advise the British Government upon this
question. There will from time to time arise judgments, even of
civilised nations, so contrary to the recognised principles of the
law of the nations against the subjects of which it is sought to
enforce the judgments, that difficulties arise. The difficulties have
( X9 )
been met by diplomacy, but we do not want, if we can help it, in
a code which recognises the enforcement of foreign judgments,
to resort to diplomacy. In the words which I used at the end of
my enumeration at the time, I said that there ought to be a
condition that the rights enforced were recognised by the law of
both nations. Mr. Foote and the others in their report provide
that the judgment sought to be enforced must contain nothing
contrary to the law or public policy of the state of the Court that
is asked to enforce the foreign judgment* I believe that our
French friends think that these words are not sufficiently stringent,
and if so I agree with them. I think, in order that there should
be a successful code of international law with a view to enforcing
foreign judgments, it is essential that the rights which are sought
to be enforced should be rights recognised by the laws of both
countries, namely, the law of the country in which the judgment
has been obtained, and the law of the country in which the judg-
ment is to be imposed I mention this because I never like to be
too sanguine in these matters, and I speak with some knowledge and
experience that at times amongst very civilised nations whose legal
systems have advanced to a very high standard judgments have
been given which it would be almost impossible to enforce in
other countries, because of their being altogether repugnant to the
laws of the country in which they are to be enforced. I mention
this matter because I believe it to lie at the root of some of the
troubles in the way of a uniform code. I do not know whether
all the members of the Conference have studied this subject of
the enforcement of foreign judgments as fully as I have been
obliged to do in years gone by, but if anyone has any wish to
refresh his recollection he will find that the paper of Mr. G. G.
Phillimore, one of the secretaries, which was written for the
Brussels Conference, contains practically almost everything that
can be said as regards English law on .the matter, and it is a most
valuable paper and a starting-point to those who wish to start a
study of the subject
I wish to mention and to thank Dr. Hindenburg, the Attorney-
General of Copenhagen, for presenting a paper to this Congress
C 2
( 20 )
upon a comparatively minor matter, the taking of evidence in
foreign countries. I have had a good deal of experience of cases
in which this kind of evidence has had to be procured, and there
are great difficulties which surround it, and if between civilised
nations the discussion on this subject, on the lines of Dr. Hinden-
burg, would produce a more uniform system in this branch of
practice and procedure, it will be of immense advantage to all
commercial men ; and it is essential that evidence should be
obtained with greater &cihty and less expense, and with more
universal recognition of its validity, than at present exists.
I would only express again my regret that I have not had the
time to prepare some more distinct matter for your consideration*
In concluding my observations to you I wish to say that I rejoice,
as much as if not more than any one in this room, at the success
which has attended the labours of this Association. I remember
it from its very earliest days. I remember a time when it could
scarcely attract any attention at all, when its Congresses received
no notice and were but poorly attended. During the last ten or
fifteen years, laigely due to the great interest taken by our American
friends in the labours of this Conference, largely due to the support
we have received from Germany, France, Italy, Belgium, and
Holland, we have seen that our papers have received greater
attention, and they have been quoted and I know they have been
made use of by government departments in forming their opinion
on questions of International Law. It has been my privilege
more than once to send copies of our printed reports to members
of the British and Foreign Governments in order that they might
know what is being done by this Association from the point of
view of endeavouring to codify the laws of nations.
Gentlemen, these Conferences have another result, and
another object, in which every one who has attended them must
congratulate himselC We bring together thinking men from
many civilised nations, not of course in large numbers, but many
of them the most earnest in their nations, and give them the
opportunity of ventilating ideas which I said at the beginning of
my address many of their hearers have thought at the time to be
( 21 )
chimerical and absurd, but after the experience of ten or fifteen
years we find that there wa^ a sub-stratum of truth and good
sense which has developed into a concrete and definite scheme
upon which the laws of nations have been improved. These men
who come from their own country and visit other, countries —
Englishmen who go to France, Frenchmen who come here, and
Germans who go to America, and ^ on — ^leam to know one
another better, and there is a means* of assimilating ideas, and
there b that useful friction which rubs off the unpleasant comers,
^ and leaves the germ or kernel of good sense which makes its way
to the front and makes itself felt.
Gentlemen, it is my belief that, scoff at them as you may,
think that they are not worth the trouble they involve, if you like,
still these Congresses and these meetings are worthy of cordial
support They bring together, as I said, men who desire nothing
for themselves, but who wish to promote the common good of
mankind. We have been supported for years by these men
whose one ardent desire is to see war put an end to and peace
prevail in all parts of the world. This is an object which if any
one can in the smallest degree advance, is worth any amount
of trouble ; and because I feel, as I have often said, that in these
meetings together we make friendships that last a lifetime, and
we enlarge our own minds and assist to enlarge the ideas of other
people, it is a very great pleasure for me to have addressed you
to-day. I only wish that my observations had been more worthy
of your consideration. (Applause.)
International Arbitration,
Dr. W. Evans Darby, LL.D. (London), Secretary of the
Peace Society, read the foUowmg Paper :—
( « )
'' PERMANENT ARBITRATION " IN MODERN
INTERNATIONAL LAW.
In discussing the sources and the validity of International Law,
too little, it seems to me, has been made of the act and the
authority of International Agreement, and, therefore, of the
formative influence of those instruments in which that agreement
has definite form and embodiment
Consequently the very character of International Law has
been questioned and its authority impugned. *'The proper
nature of International Law," wrote Professor Caimes some years
ago, " is still a subject of controversy. On the part of Bentham
and his followers, and not less by a very different school, Savigny
and those who accept his teaching, a distinction in character has
been recognised between the rules which regulate international
intercourse and the municipal code of States. On the other
hand, there are writers on International Law who do not perceive,
or refuse to acknowledge the relevancy of, this distinction*
Dr. Phillimore and Dr. Twiss, for example, have contended that
International Law is * law ' proper — ^law that is to say in the same
sense in which an Act of Parliament is * law.' "
Alleged Source of International Law.
In reply to the question. What is the source of International
Law ? Caimes maintains that " the answer given by Bentham,
and since his time more precisely stated by his disciple Austin,
must be allowed to be satisfactory. International Law is merely
the formal expression of the public opinion of the civilised world
respecting the rules of conduct, which ought to govern the
relations of independent nations, and is consequently derived
from the source from which all public opinion flows — the moral
and intellectual convictions of mankind." He argues, that this is
the true character of International Law may be shown historically
as well as on abstract grounds — from its genesis in the writings
( 23 )
of publicists and the decisions of International Tribunals, no less
than from the nature of the case, by reference to the sphere of its
operations as affecting the conduct of independent States.
Grotius, he insists, derived that body of doctrine which he gave
to the world as the " Law of Nations " from two sources — the
*' Law of Nature " and the agreement of mankind as evidenced in
the testimony of the learned. . • . Subsequent writers, as well as
the actual administrators of the international system in Prize
Courts, Congresses and other International Tribunals, have *' for
the most part followed substantially the method of Grotius."
The staple of the "Law of Nations'' is thus public opinion —
public opinion embodied in usage, expounded and generalised in
the treatises of publicists, interpreted and enforced in the Inter-
national Courts. And, indeed, he asks, *^ from the nature of the
case, what else than public opinion could International Law
embody? What but moral control can sovereign Powers,
consistently with their sovereign character, acknowledge and
undergo?"
Real Source of International Law.
To the question, What else than public opinion could Inter-
national Law embody ? I answer, the volition, agreement, and
authority of the parties themselves. • Formally expressed and
solemnly ratified, these, while backed and to some extent controlled
by public opinion, may furnish all the moral control necessary.
The will of sovereign peoples expressed through their constituted
authority may as surely create and impose a law as the represent
tatives of the same peoples may pass an Act of Parliament.
Reference has been made at this length to the opinions of
Caimes because still, to a very large extent, he represents current
criticism and popular opinion about International Law itself.
A Later Theory*
A more modem writer, for instance, urges that the fact that
International Law has not yet, as positive legislation, reached its
( 24 )
final phase of complete development^ is what has induced certain
authors to deny even its existence. " It lacks/' they say, " all
the character of a positive law : a legislator, a code, a judge, and
a coercive sanction."
One might as well, he urges, reproach a child for not being
a grown-up man. National societies exist each under the law
suitable to its state of development, but international society not
being as yet so organised as national societies are, there does not
actually exist any superior power, legally constituted, above these
various societies with the object of enacting common legislative
measures, of establishing tribunals charged with the duty of
securing deference to them, and of carrying out the sentences
given in conformity with their provisions. International Law,
however, does exist. It embodies itself in custom, and in the
treaties or conventions which the international entities form
between themselves.
Still the "Method of Grotius."
There is, here, a larger recognition of actual fiu:t But the
critic is still following '' the method of Grotius," when he argues,
that just as there could not be two moralities for him who admits
the existence of a moral law, so there can exist only one single
identical law for individuals and for nations, and its essential
principles, recognised by all civilised peoples, ought to apply
everywhere and always, without modifications or exceptions ; that
this law exists^ and in so far as it applies to nations, fictitiously
considered as persons, subjects of law, takes the name of Inter-
national Law; and when he goes on to say of the treaties
themselves : *• These instruments do not create the law, but they
recognise it, they promulgate it in a way, and constitute it, hence-
forth, as the law of the parties, between whom the instruments
are made, who are obliged morally and juridically to pay respect
to it." The fact, however, remains that they do establish the
law, and do practically create it, just as much as an Act of
Parliament may do, and they do so probably with more delibera-
( «5 )
tioB than, and certainly with as much authority as, those of a
Parliamentaiy majority which passes the Act
International Tribunals.
The law, thus established, necessitates its International
Tribunal, and this is met with again and again, if not always as a
permanent institution, as it is already in some instances, at least
in an occasional way, under the form of Boards of Arbitration to
which States more and more incline, so as to entrust to them the
solution of differences which arise. Arbitration Agreements,
instituting Arbitration for special and given cases, and still more,
general Treaties of Arbitration, which are becoming so frequent
in our day, prove, by their very existence, the existence of Inter-
national Law, which is both their cause and their raison d*itre.
Sometimes they create the law, even to its ultimate details, as in
prescribing the procedure and conditions of the Courts. More
than th&t, they establish the authority of International Law. It
is true that these legal agreements which are formed between
international personalities cannot logically have any other cause
than the will of the peoples whom these personalities represent ;
but these peoples are themselves sovereign authorities ; the law
established by their agreements is fast crystallising into a code ; a
judicature has at length been created; and behind all are the
moral character and opinions of the peoples themselves, which
furnish the only effective sanctions; so that we have all the
conditions of actual positive law.
DxriNiTioN OF Arbitration.
The widest and simplest definition that can be given to
Arbitration is that ^' it is the judgment of a cause by a third party
designated by the contending parties.**
Almost all positive legislations permit individuals, instead of
having recourse for the settlement of their differences to the
officially appointed magistrates, to unite in nominating a judge of
( '6 )
their own selection and possessing their confidence, who wil!
give a valid and compulsory decision under certain conditions
imposed by the appointed rules of procedure : such is private
Arbitration.
Extended to the international domain, Arbitration is the
institution to which two or more States have recourse when
they agree to refer to Arbitrators the judgment of a dispute
which divides them at the time the agreement is formed, or
which may divide them in the future.
Arbitration Occasional or Permanent.
Thus, International Arbitration may be ''occasional" or
''permanent" If the question in dispute has already arisen
at the moment when the agreement for Arbitration intervenes.
Arbitration is said to be "occasional," ox A posteriori ; for it is
constituted to meet the special case to which it is to be applied,
and subsequent to the appearance of the difference. If, on the
contrary, the States enter into an agreement in advance, by a
valid international treaty, to submit to Arbitrators the solution of
such disputes as may be specially determined or defined, or of aU
disputes which may arise between them in the future, the Arbi-
tration is said to be "permanent," or d priori ; for such an
engagement is binding on the parties fix)m the day in which it
is formed, in a manner ptrmanetit and anterior to every difficulty
that may arise.
"Arbitration Clauses."
In this case, the agreement may take the form of a clause
inserted accessorily in a treaty having for its main object any
matter relevant to International Law, or it may be the subject
of a separate treaty expressly entered into for the purpose of
applying the principle of Arbitration. The agreement is said to
be " special " or " general," according as it refers to a particular
difference or class of differences provided for by the treaty, or as
it submits to Arbitration all possible differences which may arise.
( 37 )
excepting those reservations which may be made by the con-
tracting parties in regard to such questions as may be deemed
by them unsuitable for reference to Arbitration.
In either case Arbitration is a genuine suit, unfolding itself
before judges, chosen by the parties, it is true, but legally
rendering an obligatory sentence by virtue of the treaty, or
Arbitration contract, which appointed them.
"Facultative" or "Obligatory."
Arising out of this difference there is another; Arbitration
may be either " facultative " or " obligatory." The conclusion
of the agreement for Arbitration is voluntary (that is, " optional "
or " facultative "), in the case of an isolated Arbitration, in the
sense that it cannot be imposed upon one of the parties by the
other ; it is so no longer when there exists between the parties
an agreement which establishes a legal obligation to refer to
Arbitration. The distinction is made in the Hague Pacific
Convention in reference to its application to particular instances
as they arise. The decision is, of course, always obligatory : the
distinction applies only to the reference.
"Occasional" Arbitration.
It has been often said that civilised man is especially distin-
guished from the savage by the faculty of anticipating the future.
But that is the second step even for the civilised man. He has
first to deal with the past, and he is fortunate if from its expe*
rience he acquires the prevision which also means provision.
It is not too much to say that the century just closed was
preemmently the period of Arbitration, and the practicability
of this principle of International Law was proved by the histo-
rical fact of over two hundred instances in which that principle
was applied.
From time to time these instances have been reported at
these Conferences of the International Law Association in
( 2» )
papers presented by Mr. H. Richard, Mr. David Dudley Field,
and others. But these have been mainly — indeed, almost
exclusively — instances of Arbitration ad hoc^ or J posteriori.
Comparatively little attention has been given to the " prevision "
of the practice of Arbitration — to the Arbitration Clause and the
Treaty of Permanent Arbitration which is its most definite and
perfect manifestation. Yet it is in this direction that the most
real and conspicuous progress has been made, and, in the present
state of the international world, the institution of permanent
Arbitration frankly accepted in its principle and respected in
its result^ appears to me of a nature to render most eminent
service.
Permanent Arbitration —
It is in this direction, I repeat, that, following a natural, and,
indeed, it may almost be said, a necessary, sequence, the most
conspicuous progress in the practice of Arbitration has been
made of recent years.
In Ancient Times;
Not that by any means this form of Arbitration is of purely
modem origin. Like the practice of Arbitration generally, it goes
back to the earlier ages of civilised history. There are traces of
permanent Arbitration among the ancient Greeks. Herodotus,
for instance, reports that Artaphemes, governor of Sardis, com-
pelled the lonians, after their subjugation by the Persians, to form
treaties among themselves to settle their diffeiences in the future
by law, so that they should abstain from violence and rapine
towards each other. A treaty of alliance, conchided for fifty
years between Argos and Sparta, contained a final clause sub-
mitting to the Arbitration of a neutral town the differences which
might arise between them. The terms of this treaty are given by
Thucydides.
In the truce between Pericles and Sparta, signed in b.c 444,
it was decided that differences which might arise should be
( »9 )
settled by Arbitration ; and a convention formed between the
towns of Hierapytna and Priansos in Crete stipulated that, in the
case of injuries, recourse should be had to Arbitration under the
direction of the Kor/iM, or Council of Chief Magistrates, and that
advocates should be employed, as provided by the public edict ^
It should be observed, however, that these stipulations were made
only between the peoples of Greece, and not with foreigners.
As regards these, Livy says, war was an eternal duty.
In regard to Arbitration, Rome was inferior to Greece. The
Romans never had recourse to it. They had their ^^ jus feciak^^
but even the Pax Romana left no congenial soil in which the
institution of International Arbitration might take root
In the Middle Ages;
Among the many beneficial institutions inspired by Chris-
tianity in the Middle Ages, such as the Peace of God, the
Truce of God, etc., many instances of Arbitration are to be
found. Popes, bishops, emperors, towns, parliaments, simple
individuals, were all appealed to. ' But they were cases ad hoc.
To find examples of permanent Arbitration it is necessary to turn
from the great States to the little federal republics, the commercial
towns of Italy and Flanders, or to the Swiss cantons. There
were loo cases of Arbitration in Italy alone diuing the ijth
century. A treaty of mutual alliance concluded between Genoa
and Venice in 1233, contained a clause providing for submission
to the Arbitration of the Pope. It was in Switzerland, according
to M. Numa Droz, that the first treaties of permanent Arbitration
were formed, and he instances an alliance between the cantons of
Uri, Schwytz and Nidwald in 1291, which contained a stipulation
of Arbitration. A treaty concluded at Fribourg, 29th November,
1516, between Francis I. and the Swiss cantons, and known by
the name of " Perpetual Peace," contained an Arbitration clause.
The cities of the Hanseatic League (1210, the year of its forma-
tion, to the 15th century), established the practice of Arbitration,
* Merignhac, p. 22.
( 30 )
and referred their differences to the city of Lttbeck, which selected
four other towns to form a tribunal whose sanctions were — ^minor
or major excommunication, as the case might be. The period
from the Renaissance to the beginning of the last century was
emphatically the era of absolute and despotic monarchy and of
manifold wars, in which there are only a few examples of
** occasional " Arbitration, and none of " permanent"
In Modern Times.
It is not necessary that I should follow in detail the remarkable
progress of the permanent Arbitration movement, which has
marked recent years. A bare outline of facts will suffice : —
The British Parliament.
The modem period of its history dates from the year 1843,
when the Peace Convention of London was held, the first of the
series of remarkable International Peace Congresses, in which
for the first time permanent Arbitration was advocated and
pressed upon legislatures and Governments. An address was
prepared, unanimously adopted by it, and sent to " The Govern-
ments of the Civilised World," urging •* the recognition of the
principle of Arbitration, and the introduction of a clause into
treaties, binding themselves to refer all differences that may
arise to the adjudication of one or more friendly Powers."
The progress of the movement may be illustrated by its
history in the British House of Commons. During the period of
those Congresses, on the 12th June, 1849, Richard Cobden
introduced his historical motion in favour of permanent Arbi-
tration, which was defeated, almost contemptuously, by a large
majority. Nearly a quarter of a century later, H. Richard
introduced another motion on the subject, which on the 9th
July, 1873, was carried by a bare majority. But on the i6th
June, 1893, such had been its progress in the interval, the
( 31 )
House of Commons declared itself in favour of the principle
with absolute unanimity, and without a formal division.
Other Legislatures.
A similar history attaches to the treatment of permanent
Arbitration in the French Parliament, where it was first introduced
by M. Bouvet, in 1848 and 1849, and reached its climax on the
•8th July, 1895, when it was adopted with only one abstention.
The action taken by the various other legislatures, during this
period, is worthy of notice. For the Parliaments of £urope and
America, with the exception of the German Reichstag, have all
adopted resolutions in favour of the insertion of an Arbitration
clause in treaties or conventions, or of the conclusion of per-
manent treaties. The details are most interesting, but need not
detain us.
Clauses and Treaties.
The results of the new movement became, in course of time,
apparent, although treaties containing an Arbitration clause,
special or general^ are comparatively rare before the year 1872^
when the movement was again taken up with vigour. From that
time, thanks to the ever-increasing growth and widening of the
movement, to the efforts of the Peace Societies, either acting
alone or in their Congresses, which have been periodical since
1889, ^ those of the later-parUamentaTy Conference, dating from
the same year, and to those of this Association and kindred
organisations; thanks also to the personal labours of MM.
Mancini, H. Richard, Thonissen, Descamps, Van Eck, Senator
Allison, and others, in the Italian, British, Belgian, Dutch,
American, and other Parliaments, these treaties have become
much more numerous, the Arbitration clause has been more and
more superseded by the Treaty of permanent Arbitration, and
even more substantial progress still has to be recorded.
These results may be presented in three distinct classes : —
( 3» )
t. Treaties containing a special Arbitration clause,
that is, a clause embodying the obligation to refer to Arbitra-
tion points specially determined by the treaty, and generally
relating to its interpretation and application.
These treaties have been very numerous.
a. Treaties containing a general Arbitration clause,
or, a clause expressing the obligation to submit to Arbitration all
future disputes in a general way, or all disputes, excepting only
those which the parties may have formally enumerated in the
treaty as excluded from Arbitration.
These treaties, also, amount to a considerable number, and
have been, for the most part, formed by the American States,
either between themselves or with European Powers.
Some of them contain both a special clause and a general
clause.
3. Treaties of Permanent Arbitration.
In these, instead of being incidental and accessory, as it were.
Arbitration forms the real object of the treaty, which, besides
embodying the obligation to submit to Arbitration, determines
tl^e tribunal, fixes the rules of procedure, and otherwise regulates
its action.
It is among the American States, also, that the first treaties of
this description are found ; and to the Republic of San Salvador
belongs the honour of having concluded the greatest number.
The most remarkable of these treaties was that between Italy and
the Argentine Republic, signed on July 23rd, 1898, and subse-
quently ratified.^ Almost identical treaties have also been
concluded, between the Argentine Republic and Uruguay, the
Argentine and Brazil, and Brazil and ChilL By these treaties the
contracting parties bind themselves to submit to Arbitration all
' A letter from Professor Corsi, read at the Conference, stated that the
Treaty has not been ratified, the failure being on the side of the Argentine
Senate.
( 33 )
the disputes, whatever may be their nature or cause, which may
arise between them, when such cannot be adjusted in a friendly
way by the ordinary course of diplomacy.
In the same category must be placed : — The Treaty projected
between Switzerland and the United States in 1883 ; the Treaty
concluded and signed between Great Britain and the United
States on the nth January, 1897, but which the American Senate
declined to ratify; and the Treaty providing for a permanent
Tribunal of Arbitration, which was adopted and signed by the
Pan-American Conference at Washington, April i8th, 1890, but
was only ratified by some of the Signatory Powers, and therefore
lapsed.
Fresh Developments.
This was the position of affairs when^ on July 28th, 1899, the
Peace Conference at the Hague adopted its " Convention for
the Peaceful Regulation of International Conflicts," by which
permanent Arbitration received a most remarkable development,
and the movement for the establishment of an international juri*
dical status, to which so many jurists have consecrated their
energies, an unprecedented impulse.
For the Peace Conference, which was an Assembly composed
of the representatives of nine-tenths of the inhabitants of the
globe, not only established the institution of i priori Arbitration
on a more solid and stable foundation and in a more effective
form ; it constituted, in place of a simple and occasional inter-
national tribunal, a Court which is really permanent, with a
standing executive and staff of officials and a panel of judges from
which choice has to be made by intending litigants. It did more.
To quote the words of M. de Staal, in his closing speech : — •• The
Conference, with the authority attaching to an Assembly of
civilised States, on its part, sought to safeguard, in questions of
capital interest, the fundamental principles of International Law.
It set itself to the task of defining them, of developing them, and
of applying them in a more complete manner. It created on
D
( 34 )
several points a new law, corresponding with fresh necessities,
with the progress of international life, and with the best aspira*
tions of humanity. In fact, it has accomplished a work which the
future will no doubt call the first International Code of Peace."
And, as insisted by Mr. F. W. HoUs, the official historian of the
Congress, " this work must remain, whatever the faults or defects
of its particular provisions, the nucleus, around which, by dis-
cussion and adjudication, a more perfect body of law is sure to be
framed." It also sought to consolidate, while safeguarding both,
the two principles which are the foundation of International Law
— the principle of the sovereignty of individual States, and the
principle of a just International Comity. The inevitable result of
the new departure will be the substitution of law for force in
International relations.
Since the Hague Conference the movement has been carried
a step further by the action of the Diplomatic Congress of the
Spanish-American States (most of which were unrepresented at
the Hague), which was held last year at Madrid, and which, on
the 2nd November (1900), adopted a scheme of Arbitration pro-
viding for ''^ permanent and obligatory " Arbitration instead of the
^''permanent and facultative'^ Arbitration fixed by the Hague
Convention. This further action may be described as comple-
mental, but it adds nothing that is essentially new.
Danger of Retrogression.
Signs are not wanting that the work of the Hague Con-
ference, especially as regards the Arbitration Tribunal, was more
thorough and advanced than people in general, and some friends
of international Peace in particular, were prepared for, and that
there is some danger, unless special care be taken, and a due
resort made to chart and compass, of returning on our course, of
lessening the value of what has been accomplished, and so, of
retarding the progress of the work we have at heart A remark-
able instance of what I mean, occurring in diplomatic circles,
where, surely, it was to be least anticipated, was furnished by a
( 3S )
notice in the Times of the 3rd inst The paragraph was as
follows : —
It will be remembered that Baron Lambermont, of the Belgian Ministry
for Foreign Affairs, recently accepted the post of Arbitrator in two disputes
between Great Britain and France ; one in relation to the confiscation by
EngUnd of the French vessel Sergent Melamine^ and the other as to a
misunderstanding between French and English soldieri dnring the pursuit of
native tribes in the Hinterland of Sierra Leone, when shots were exchanged.
Baron Lambermont, in conformity with the rules of procedure laid down at
the Hague Conference, will shortly have the necessary documents placed in
his possession, and a vote to this effect was recently passed in the French
Chamber. It appears, however, that Baron d'Estournelles, who took a
leading part at the Ht^e Conference, has addressed a protest to M. Delcass^
on the ground of irregularity of procedure, contending that Baron Lamber-
mont should not have been approached direct, but through the intermediary
of the Permanent Court of Arbitration now definitely constituted at the
Hague. A similar protest has also been addressed to the British Government.
The incident, though trifling in itself, is likely to have an interesting result —
namely, the utilisation of the Hague Tribunal for the first time by two of the*
Signatory Powers.
I am aware that an explanation was given by M. Delcass^ in
reply to an interpellation in the Chamber, but that hardly mended
matters.
The incident, however, cannot be correctly described as
"trifling in itself," for it reveals an astonishing oversight, or a
remarkable failure to appreciate the value and validity of the
Hague Convention, and its binding and legal force upon all the
Signatory Powers. Even the Times refers to the " utilisation of
the Hague Tribunal " as if it were an " interesting result " which
was hardly to be anticipated, although it overlooks the fact that
in the arrangement referred to there is no utilisation of the
Hague Tribunal at all, which is the ground of the protest
Legal Authority of the Hague Convention.
' It is not necessary to urge the authoritative character of the
Hague Conference and the legal obligation of its acts, which have
been since ratified by the Governments represented, and so
invested with the validity attaching to all international agree-
ments.
D 2
( 36 )
And it surely ought not to be necessary to insist on the
mischief which may accrue, not only from diplomatic action like
that reported in the TimeSy but from the agitation to set aside the
Hague Convention by new agreements between separate States.
The new agreements cannot be more binding ; and, as formed be-
tween two individual States, they must have less dignity and moral
force than deliberations and definite contracts formally conducted
and concluded between a large number of States. It has been
well said (by Mr. G. H. Ferris, in Concord)^ " So far from there
being any doubt of the legal force of the Hague Arbitration Con-
vention, we do not hesitate to say that that Convention carries
with it the highest legal obligation, and has the fullest legal
quality, of any International Agreement that has ever been tnade.
This is so, in the first place, because the Convention was the
•
result of a procedure more deliberate and imposing than that
which has marked the consummation of any previous International
Compact Law in the highest instance is the decree of a legisla-
ture, and never in human history has there been so near an
approach to the constitution of an International Legislature as in
the Meeting at the Hague of the chosen " (I would rather say
the authorised and accredited) " envoys of four-and-twenty inde-
pendent States, for the purpose of the discussion and settlement
of difficulties under which they all labour." The matter could
hardly be better or more justly stated, and the statement is con-
clusive.
"Facultative" and "Obligatory."
A clear understanding of these terms is necessary.
"Facultative," as used in connection with the Hague Arbitra-
tion Convention, does not mean that it is " optional " whether
the Signatory Powers shall fulfil their obligation to carry out the
Convention, and to use the Tribunal, or not The whole of the
proceedings in which these Powers have been taking part would
amount to a solemn farce if it meant that It means only that it
is left " optional " whether they will refer to the Court, or not, the
particular difierences as they arise — each being determined on its
( 37 )
own merits. The obligation honourably to fulfil their solemn
engagements is not affected at all— that remains intact
" Obligatory," as used in this connection, simply means that
the Powers may by Treaty pledge themselves beforehand to
submit all cases of difference, except any that may be specifically
designated, to the Court, as they arise, thus creating for themselves
a new moral and legal obligation— and, hence, making Arbitration
" obligatory " in each case.
The proposal of the 19th Clause is not that new Treaties shall
be formed to make the Hague Convention itself obligatory — that
would be absurd. It is obligatory already to the extent of its
terms. I repeat that both the moral and legal obligation to carry
out the Hague Convention, as far as it extends, already exists —
nothing could make it stronger; and it is not in the slightest
degree affected by the fact whether the appeal to the Court is, in
each case of difference, " facultative " or " obligatory."
Again, the term " obligatory," as used in Article 19, does not
mean that the Powers signing such Treaties as are there con-
templated become amenable to some obligation, compulsion or
coercion, enforced by the other Powers; that has been never
mentioned, or even dreamt of except by the advocates of
coercion, who cannot get away from the employment of physical
force. // refers solely to the obligation they create for themselves by
the new Treaty entered into. In the first place, if " obligatory "
meant anything of the kind^ no Government would accept the
position involved, for that would be to sacrifice freedom. And,
in the second place, international jurists, and advocates of Peace
generally, could, not support such a proposal That would be to
give us the old system under a new guise, only labelled " Law "
and " Peace." It would soon result in the evils and conflicts
of the old system; in a very little while armies would be
necessary to compel the submission of the recalcitrant, and the
sacred cause of Peace and International Order would be perverted
into the occasion of new wars of which it, in time, would become
the fruitful mother.
There is great danger lest the use of the term " obligatory," by
( 38 )
suggesting some means of compelling an appeal to Arbitration,
which does not now exist, may result in the formation of too low
an estimate of the value and validity of the Hague Convention.
This can be avoided only by a clear understanding of the terms
used, and the ends sought.
Effect on the Development of Law.
There is a further consideration bearing on International
Law itself. A body of Law having a general recognition and
authority, cannot possibly result from the operations of any
number of such Treaties as are now proposed or the isolated
Courts established by them, the proceedings and decisions of
which would have no authority for the others. The development
of an International Code would under those circumstances be
exceedingly doubtful, or at best slow — indeed, paradoxical as it
may seem, the more Treaties and Courts there are the slower and
more ineffective will be the process of developing a Code and a
common practice of Law. How diflferent the results from the
continuous action and connected procedure and decisions of a
Permanent Court, like that now established at the Hague, in
which Law would broaden down from judgment to judgment, and
precedent to precedent, and its influence grow deeper and
stronger as the process continued.
Proposed Action.
Now, with regard to the proposal, which has met with favour
in some quavers, that the Powers be urged to form new general
Treaties of Arbitration between them, it must not be forgotten
that Great Britain and France, the United States and Great
Britain, France and the United States, or whatever combinations
of Powers may be invited to form such Treaties, are the con-
tracting Powers under the Hague Convention, and they are
already solemnly bound by the Agreement they have made and
ratified, and under obligation to use, and to bring to the notice of
( 39 )
Others, the arbitral instrument which they have helped to
construct In Article 21 of the Hague Convention the Powers
agree that ** the Permanent Court shall have jurisdiction of all
cases of Arbitration, unless there shall be an Agreement between
the parties for the establishment of a special (not a general)
tribunal"
It will be evident, therefore, on a moment's reflection, that
the only fresh Treaties or Conventions which can now be in
order to the contracting Powers at the Hague, are: ist, the
Convention (compromis) necessary for the reference to the
Permanent Tribunal of every difference between them, as it
arises; and, 2nd, the special Treaties provided for in Article 19
of the Hague Convention, which runs : " Independently of
general or special Treaties which may already impose upon the
Signatory Powers the obligation to have recourse to Arbitration,
these Powers reserve to themselves the liberty to conclude, either
before the ratification of the present Convention, or subsequent to
that date, new Agreements, general or particular, with the object
of extending obligatory Arbitration to all cases which they judge
capable of being submitted to it''
The first kind of Convention is already in operation, and is
indispensable as the instrument by which ail references are
made to the Court Therefore the only special Treaty which can
consistently be recommended to these groups of Powers, and
which can really strengthen the position, would be the general
Treaty contemplated at the Hague, pledging any two countries
to what is technically known as "obligatory Arbitration." To
invite them to form any other is to invite them to repudiate their
own action, and to disregard their own plighted word, in order to
repeat, in a similar but less forcible form, what they have already
done. Such invitation would be, in my judgment, both
inconsistent, unfortunate, and mischievous.
It is surely not a course which can be favoured by the friends
of Peace, the goal of whose effort has been the formation of just
such a permanent system as that which has been now introduced
by the Hague Convention.
( 40 )
The Hague Court already a Fact.
What we have to start with, and what needs emphasis, is that
the Permanent Tribunal is un fait accompli The Court has been
formed, and our business now is to promote its use '^ for facilitating
an immediate recourse to Arbitration,'' and as the beginning of a
permanent juridical system. To assume an attitude of distrust
towards it is to deal it the hardest blow in our power. We must
not be impatient with it because it does not carry us to the goal
with one stride — because it does not establish at once universal
and obligatory Arbitration. We must be content to make progress
step by step ; and to make our work really effective and
permanent we must keep clear of all forms of compulsion and
coercion ; that way, I repeat, the old war system lies.
The Hague Convention is a general Arbitration Treaty entered
into by twenty-four of the Principal Powers, which have agreed
that the Court it establishes shall have jurisdiction of all cases of
Arbitration, unless in some special cases. What can be gained
by repeating it piecemeal as it were, as a general Arbitration
Treaty between groups of two Powers — which hardly strikes one
as a business course — or by superseding it by new general
Treaties, formed on the Anglo-American, or some other model,
between groups of two ? That is a very restricted internationalism,
and a decided retrogression, and it would, if successful, be fatal to
the scheme of the Hague Convention.
How IT WOULD Work.
Let us see how it would work. The proposal is, that general
Treaties of Arbitration, on the model of the Anglo-American of
1897, and the Italo- Argentine of 1898, which were signed but
not ratified, should be entered into by every two Powers beginning
say, with Great Britain and the United States of America, Great
Britain and France, and so on. I say nothing of the value of
these documents. They may, as Lord Alverstone has affirmed of
the former Treaty, " embody more of the principles on which a
( 4' )
general Treaty of Arbitration might proceed than any other State
paper which has ever been published." That is not the point at
issue. Either of them might " still be the starting-point," as he
expressed it, if the starting had not already taken place. But
what would follow the proposal now made ?
This would follow. Each treaty as it was formed — that
between Great Britain and the United States, to wit — would
withdraw from the cognisance of, and from all connection with,
the Permanent Court at the Hague, the whole of the difficulties
which may in future arise between the two Powers forming the
treaty. They would have their own Tribunals, or sets of
Tribunals, provided for by the Treaty. This would happen in
the case of each new treaty.
The consequence would be that the Permanent Court would
be more and more superseded, until in time, short or long,
according to the success or otherwise of the movement, there
would be no constituency left, and the Court would become non-
existent We should then have Permanent Arbitration, it is true,
but the present world-wide combination of States for the purpose
of Arbitration would be dissolved. Such a suicidal course was
never contemplated by Article 19 of the Hague Convention, its
provisions were too wisely framed for that The Treaties it
contemplates are those between States, binding them to submit
all differences, except any specially designated, as they arise, to
the Permanent Tribunal, and no other, except in special cases.
This is specifically provided in Article 21. The more the Hague
Convention is studied the more one is struck by its practical,
diplomatic common-sense and wise arrangements.
The new policy succeeds, let us suppose, absolutely and to
the fullest extent What then ? We shall have a number of dual
combinations — twenty-four general treaties, and possibly more —
as in the Anglo-American Treaty (the accepted model), thrice
twenty-four tribunals — instead of one treaty and one tribunal, as
at present. But what, then, becomes of the gain to International
Law, and what of the "juridical status" between nations? What
real increase of the juridical system would it involve? When
( 42 )
this object were reached, if ever it were, which is most unlikdy,
we should be still as far as ever from our goal.
It would be necessary, then, to begin a fresh agitation for the
combination of all the groups so formed, before a really universal
International system should be established. " The federation of
the world, the parliament of man," would be relegated to the dim
and mist}' distance of a future made more remote by the failure of
the present defeated attempt. To-day they are accomplished
facts in the Hague Agreement and its Permanent Court. The
main thing is to make these vital and effective, and to do every-
thing in our power to defeat the conspiracy of the Governments
which are anxipus to preserve their power and prerogatives, if, as
affirmed by Baron d'Estournelles de Constant, it really exists.
By all means urge the formation of treaties for "obligatory"
Arbitration, as provided for in Article 19 of the Hague Conven-
tion, or even the formation of any other treaties, the object of
which is to make the Permanent Tribunal effective or to extend
its scope and efficiency. But let us also remember that the
success of any project which renders the Hague Convention
abortive will leave us with all the work of forming an international
juridical system to do over again, even though for the moment it
may seem to advance' the cause of Arbitration, which the advocates
of Peace have so closely and constantly at heart.
The Hague Scheme not Finau
The Hague Scheme does not profess to be final ; in one sense
it is only a beginning. Within its scope, and in harmony with it,
there is ample room for development, incitements to which it
wisely furnishes.
It is very doubtful, however, whether the present moment is
propitious, even for agitating the formation of new Conventions
for " obligatory " Arbitration. I am inclined to think that it might
be better to culture than to force the new plant ; to let the
Court which has been formed go on with its work, commend its
utility, demonstrate both its necessity and efficiency, and so
{ 43 )
establish itself as did the National Courts of Justice which gra-
dually superseded the private warfare of feudal times. The rest
would assuredly follow. When the Powers have grown accustomed
to the present system of " facultative " Arbitration they may cease
to be apprehensive of " obligatory," if that should prove to be
really desirable. The main thing is to have a really workable
system in regular and, as far as possible, automatic activity. And
the sooner this can be had the better.
Conclusion.
Two years ago, at Buffalo, the Conference of this Association
decided to abstain from completing its own work of formulating a
set of Rules for a Permanent Tribunal, lest by doing so it should
seem to reflect upon, or in some way intrude into the domain of,
what had been accomplished at the Hague. There was on the
face of it no valid reason for this abstention, because the two tasks
were quite distinct and independent of each other, the Association
had the work in hand long before the Hague Conference had
been proposed, and it had completed its work before the Final
Act of the Conference had been adopted, so that there could be
no suspicion of any conflict between them.
It is otherwise to-day. The course which has been proposed
involves both a reflection upon, and a repudiation of the work
done at the Hague. To lessen the authority of the Hague
Convention, is to weaken the whole system of permanent Arbitra-
tion and to have the work to do over again under less favourable
conditions, because doubt will have been thrown upon the sincerity
and worth of International discussions and agreements. I there-
fore respectfully urge upon the Association that what now remains
to be done for the realisation of its aims in regard to public
International Law and the establishment of an International
Jurisdiction, is to follow up what has been already accomplished ;
not to create afresh, still less to return upon our own footsteps,
but to utilise the work of the Hague Conference, which is, to say
the least, so far, the highest water mark of International progress ;
( 44 )
to make it and its labours stepping-stones towards the new
International Order; and to do this, and all else that may
spring out of it, in the strong conviction that, as Mirabeau
declared —
Law will one day be sovereign of the world.
Mr. J, G. Alexander (Tunbridge Wells), read the following
Paper : —
General Arbitration Treaties, under Art. 19 of the
Hague Peace Convention.
The 19th Article of the Convention for the Peaceful Adjustment
of International Differences, adopted by the Peace Conference of
the Hague in 1899, runs as follows : —
Inddpendamment des Traitds Independently of existing
gdn^raux ou particuliers qui general or special treaties im-
stipulent actuellement Tobliga- posing the obligation to have
tion du recours k Tarbitrage recourse to -arbitration on the
pour les Puissances Signataires, part of any of the Signatory
ces Puissances se r^servent de Powers, these Powers reserve to
conclure, soit avant la ratifica- themselves the right to con-
tion du present Acte, soit pos- elude, either before the ratifica-
t^rieurement, des accords nou- tion of the present Convention,
veaux, g^n^raux ou particuliers, or subsequently to that date,
en vue d*^tendre Tarbitrage new agreements general or
obligatoire k tons les cas qu'elles special, with a view of extend-
jugeront possible de lui sou- ing the obligation to submit
mettre. controversies to arbitration, to
all cases which they consider
suitable for such submission.
This Article took the place of, and was based upon, Art XL
of the project of mediation and arbitration laid before the Con-
ference by the Russian delegates. Art. X. of that project
provided that, after the ratification of the Convention, arbitration
( 45 )
should be obligatory upon all the Signatory Powers, " so far as it
affects neither the vital interests nor the national honour of the
contracting Powers," in cases of (i) pecuniary damages, (a) postal,
telegraph, and railway conventions, and those for preventing
collisions at sea, relating to the navigation of rivers and canals,
for the protection of literary and industrial property, and of
various other categories. But Germany objected to all obligatory
arbitration; and as she had been brought, not without some
difficulty, to agree to the constitution of a permanent Interna-
tional Court of Arbitration, her objection on this head was readily
acquiesced in. Indeed, the Conference would probably have
done harm rather than good if it had solemnly proclaimed that
international arbitration is all very well, and may even be made
compulsory, in the kind of dispute as to which the practice of
arbitration has already become universal amongst civilised nations ;
for it would thereby have seemed to imply that for graver disputes
arbitration must be held inapplicable.
Art XI. of the Russian draft ran as follows : —
"Signatory Povrers may extend the above list, and any Power can enter
into special agreement with any other Power to make arbitration in these
cases obligatory before general ratification, as well as to extend its com-
petence to all cases possible of submission."
On the dropping of Art. X., this Article was expanded into the
wider and more complete form of the text already given.
It is noteworthy that the diplomatists at the Hague took pains
expressly to reserve the right of concluding general and obligatory
Arbitration Treaties between any of the Powers whom they
represented, even before the Hague Convention should be
ratified* They might have spared their trouble in this respect
More than two years have passed since the Hague Convention
was signed (July 29th, 1899), and nearly a year since the ratifica-
tions were deposited at the Hague (September 4th, 1900) ; the
august tribunal established by the Convention has commenced its
work ; but no General Arbitration Treaty has yet been concluded
between any two of the Signatory Powers. The only treaty of
this character which has yet come into force, so far as I had been
( 46 )
able to ascertain, until the mention in the paper just read of
some treaties between South American Republics, is that between
Italy and the Argentine Republic, which was signed at Rome on
July 23rd, 1898, the date of whose ratification I have not yet
succeeded in finding.^ The text of this treaty, translated into
French and English, is contained in the enlarged edition of
" International Tribunals," the valuable compilation of schemes
and treaties of arbitration prepared by our colleague. Dr. Evans
Darby, originally for a Committee of this Association, of which a
copy was presented to each member of the Hague Conference.
A revised French translation is given by another of our colleagues,
Professor Corsi, in his excellent " Etude sur un Nouveau Traits
Gdndral d' Arbitrage," reprinted from the " Revue Gdn^rale de
Droit International Public."
Three other general arbitration treaties, however, had pre-
viously been drawn up, but had failed to come into effect Some
particulars of these will, I hope, be interesting to this Conference,
and may suggest the best way of restarting a movement from
which the success of the Hague Conference in establishing a
permanent international tribunal has perhaps for the time diverted
public attention, but to which it should in the long run give fresh
impetus.
The first of these inchoate treaties was between the Republics
of Switzerland and the United States ; two States which seem
about as little likely ever to have any serious quarrel with one
another as any two that can be thought of in the commonwealth
of civilised nations. I do not know whether it was on this
ground that advocates of peace in both countries thought this
likely to be a favourable commencement of the movement ; if so,
it seems to me that they were mistaken. A new departure in
diplomatic relations is not likely to be made unless under the
' As will appear in the report of Thursday's proceedings, p. 228, Mr.
Alexander subsequently received, through the kindness of Professor the
Marchese Corsi, a note from the Italian Foreign OiBce stating that the Italo-
Argentine Convention has not been ratified, owing to the fact that the
Argentine Senate sought to introduce into it conditions unacceptable to the
Italian Goyemment.
( 47 )
impulse of some felt need. But the probability of war between
Swlteerlaad and the United States is a danger too remote for
statesmen to feel it worth while to expend the needful energy and
thought in elaborating an attempt to avert it; and it may well
have been for this very reason that the project collapsed. The
proposal of such a treaty was confidentially made by Herr Frey,
Swiss Minister at Washington, to Mr. Frelinghuyscn, then
American Secretary of State, in April, 1883. On receiving a
favourable reply, Mr. Frey prepared a draft treaty, which was
adopted by the Swiss Federal Council in July of the same year,
and the negotiations were referred to in the American President's
annual message to Congress. There the matter dropped.^
This draft treaty, the text of which will be found in " Inter-
national Tribunals," ' is characterised by remarkable comprehen-
siveness and simplicity. It extended to " all difficulties," without
any exception whatever (sect i). The arbitrators were to be
three, one chosen by each party, who were not to be citizens of
the States choosing them, and the third by a neutral Government
(sect. 2). It was to be concluded for a term of thirty years,
failing notice at the end of which period it would continue for
another thirty years (sect 6).
No sanction was provided, except the engagement of the
contracting parties " to observe and loyally to carry out the arbitral
sentence " (sect 5). The arbitral tribunal was to draw up a form
of agreement determining " the object of the litigation, the com-
position of the tribunal " — a strange reduplication, surely — " and
the duration of its powers," for signature by the parties (sect 3).
They were to ** determine their own procedure " (sect 4) ; nothing
was said as to determining the limits of their jurisdiction. As
a first attempt, the treaty is remarkable, though experience has
shown the desirability of greater precision in some matters.
The next attempt of the same kind is that contained in the
treaty adopted by the Pan-American Conference at Washington
• These particulars are taken from the note at p. 232 of Mr. Holl's
valuable work, " The Peace Conference at the Hague."
' Enlarged edition, 1899, P* 9^*
( 48 )
in 1890, which was signed by the representatives of eleven States,
including the United States of America, but failed to receive ratifi-
cation. This treaty is remarkable by the terms of the exception
contained in Art. 4. Art 2 enumerates certain specified classes of
controversies in which arbitration shall be obligatory, and Art. 3
extends the obligation to all other classes, except that constituted
by Art 4, namely, " those which, in the judgment of anyone of
the nations involved in the controversy, may imperil its indepen-
dence. In which case for such nation arbitration shall be
optional ; but it shall be obligatory upon the adversary power."
This provision has been severely, and I think, justly, criticised
by Professor Corsi,^ as being liable to great abuse ; for there is
hardly any question of gravity between two States as to which one
of them might not contend that its independence is at stake.
The clauses of the treaty do not present any very striking features,
though some of them deal with questions of interest and im-
portance, as, for instance, the provisions for an umpire when the
Court consists of an even number of arbitrators (Art. 9), for the
appointment of substitutes (Art. 12), for the decision by a
majority (Art. 14), and for defraying the expenses (Art i6j. The
treaty was to be in force for twenty years (Art. 18), and it was pro-
vided that any other nation might become a party to it (Art 19).
The third General Arbitration Treaty was, like the first, one
between two Powers ; this time, however, not between two which
were never likely to have any serious difficulty, but between two
communities, largely of the same race, but whose commercial
rivalry was keen ; who had once formed part of the same nation,
but had become separated as the issue of a prolonged conflict ;
who had been at war once subsequently, and had several times
seemed on the verge of war, the last of these occasions being
very shortly before the signature of this treaty — I mean the
United States of America and Great Britain. Here, again, the
treaty provided for arbitration of "all questions in difference . . .
which may fail to adjust themselves by diplomatic negotiations."
' ** Etude sur un Nouvcau Traite General d* Arbitrage," pp. 6, 7.
( 49 )
The treaty, however, provided different treatment for three
different classes of disputes. Pecuniary claims not exceeding,
in the aggregate, ;^ioo,ooo in amount, and not involving
territorial claims, were to be settled by an arbitrator appointed
by each party, being a jurist of repute, with an umpire (Arts. 2
and 3). All pecuniary claims exceeding the above amount, and
other claims, not involving territorial claims, were to be submitted
in the first place to the same tribunal, whose decision was to be
final if unanimous, otherwise it was to be subject to appeal before
a fresh tribunal composed of two arbitrators appointed by each
side, with an umpire, and the award of the majority of this
tribunal was to be final (Arts. 4 and 5). Controversies involving
the determination of territorial claims were to be submitted to a
tribunal composed of three judges of the Superior Courts of the
United States, and three judges of those of the United Kingdom,
whose award, by a majority of not less than five to one, or if by
a smaller majority, then unless protested against by either Power,
was to be final (Art. 6). Provision was made that, even in the
case of an insufficient majority, followed by a protest, the media-
tion of neutral Powers should be resorted to before any hostile
measures (Art 6). The treaty, which consisted of fifteen articles,
was in many respects more precise and elaborate than either of
the preceding ones. ^
As is well known, this treaty failed to command the approval
of two-thirds of the American Senate, as required by the Constitu-
tion of the United States ; therefore, although supported by a
majority of that body, it failed to be ratified, and constitutes one
of those glorious failures which ever prepare the way to the
ultimate success of a noble and beneficent idea. (Applause.)
The fourth attempt has been more successful.^ It is the
treaty already mentioned between Italy and the Argentine
Republic. These two States cannot by any means be classed
amongst those between which serious disputes are improbable.
On the contrary, as Professor Corsi has pointed out, the enormous
* See, however, note au/ej p. 46.
( 50 )
emigration from Italy to Argentina places the two countries in
constant relations, rendering differences highly probable ; already,
he informs us, there had arisen between them several difficult and
delicate controversies.^ It was fitting that the country which,
under the influence of the illustrious Mancini, did so much to
generalise the use of arbitration clauses in treaties of commerce,
should now be the first European State to conclude a general
licaty of Arbitration.
, Like the Swiss-American and Anglo-American projects, the
Italo-Argentine Treaty extends to all controversies whatever
(sect. i). It provides (sect. 2) for a special Convention to fix
the points in dispute, adding, however, that if no such Conven-
tion has been entered into, the arbitral tribunal shaU itself
determine the issues of law and of fact (Art 2). Unless other-
wise provided by the special Convention, the tribunal is to consist
of one arbitrator named by each party, and a third agreed upon
by these two, or, if they fail to agree, named in turn by the Swiss
President, and the King of Sweden and Norway (Art. 3). The
arbitrators must not be citizens of or resident in either State, or
have any interest in the question at issue (Art. 3). The tribunal
is to decide upon ** the regularity of its constitution, the validity
of the compromise, and its interpretation'' (Art 7), and is
instructed to decide " according to the principles of international
law, unless the compromise provides for the application of special
rules, and authorises the arbitrators to render their decision as
friendly counsellors." (Art 8.) In view of the circumstances of
the successful Venezuela arbitration, it seems doubtfiil whether it
is wise to lay down such a strict rule on this point Summum
jus^ summa injuria^ is a maxim that has special application to
international controversies, in which it is often far more important
to soothe national jealousies, by a compromise that gives some-
thing to each party, than to lay down a hard and fast rule of
international law. The inflexible rule as to costs (Art 11) is also
objectionable, as has been pointed out by Professor Corsi {op, cit.^
* Op, cit,y p. 4.
( 51 )
pp. 28-30). The stipulation for a revision of the judgment by
the same tribunal, if claimed before execution, and on strictly
limited grounds (sect. 13), appears to point to the true solution of
this much controverted question.
Future Action.
Hitherto we have reviewed the history of the movement in
favour of general arbitration treaties. It remains to consider
what can be done to promote the extension of such treaties.
That this extension is desirable can surely not be questioned by
any sincere and enlightened friend of peace. It is manifest that
every treaty of this kind limits the cases in which war is at all
likely ; for, although it is not possible to ensure that the treaty
shall be observed, yet the dread of war cannot fail to be power-
fully reinforced in any givtn case by the fact that the nations
between whom the controversy has arisen are beforehand mutually
pledged to a mode of solution of all their differences, which is
more just, more certain, and infinitely less costly. It might be
supposed, judging i priori^ that all nations would gladly adopt
such a simple and rational means of insuring themselves against
war, with the terrible uncertainty of its results, and the awliil cost
of life, health, and treasure which is the only certainty with regard
to it But it must be recognised that, as a matter of fact, so
great is the mutual suspicion which reigns between nations, that
they will not agree to deprive themselves of recourse to arms,
except in cases where they have a considerable amount of con-
fidence in each other's good faith. It is therefore only between
nations whose relations are particularly close and friendly that we
can for the present expect such treaties to be concluded.
Two years ago, when this Association for the first time held
its conference on the other side of the Atlantic, at Buffalo, and
when the members attending it were, with only two exceptions,
citizens either of the British Empire or of the Republic of the
United States in proposing a resolution which concluded by
E a
( 52 )
urging the members of the Association to promote treaties agree-
ing to submit national differences to arbitration, I expressed the
hope that it might be given to the two great Anglo-Saxon nations
to make a beginning in this great movement Since that time, it
must be acknowledged, the course of events has not seemed
favourable to a renewal of negotiations for an Anglo-American
arbitration treaty. I do not so much refer to the fact that both
nations have been engaged in warlike operations, which are not
yet at an end. This, it may be hoped, will at least have the
effect of rendering both of them more sensible of the evils of
war, and more anxious to embrace all honourable and reasonable
means of avoiding it But the emergence into fresh prominence
of the difficulty with regard to the Central American Canal,
followed by the failure of the Convention which the two Govern-
ments had agreed to substitute for the Bulwer-Clayton Treaty, has
for the time put aside the question. It is sincerely to be hoped
that a friendly settlement of the Canal difficulty may soon be
arrived at, which will doubtless pave the way for fresh negotiations
with regard to a general arbitration treaty.
One remark as to the probable nature of such a treaty seems
called for. It appears improbable that such a treaty would differ
from the former one in substituting an arbitration court con-
stituted under the Hague Convention for one composed of
English and American jurists or judges. The facts that American
law is founded upon the Common Law of England, and that
the language of the two States is the same, constitute a strong
argument for an Anglo-American tribunal. It will indeed be
important that the members of the tribunal, and the public in
both countries, should understand that the national Judges are
expected to display the same judicial impartiality which we con-
fidently expect of them as regards the several countries of which
the two nations are composed. We, in the United Kingdom,
expect that a Scotch or Irish or Colonial Judge, as well as an
English one, in the House of Lords, or the Judicial Committee of
the Privy Council, shall rise above all bias of nationality ; and I
have no doubt that our American cousins expect the same of the
( 53 )
members of their Supreme Court, as regards cases affecting the
special interests of the various States of the Union from which
they have come. Whilst judges, like other men, are fallible, and
liable to prejudice, we generally find that the consciousness of
what is expected from them in this respect keeps them above
the suspicion of national partiality. Surely we may look to
such a tribunal as that which the Treaty of 1897 would have
constituted to rise to the higher consciousness of an Anglo-
American patriotism, which shall take a lofty view of that which
is just and right, and in the interests of the whole Anglo-Saxon
community, rather than of either of its too great divisions taken
apart.
Another attempt at establishing permanent international
arbitration between two States, not referred to in the foregoing
historical sketch, because no treaty was actually drafted, may
next be mentioned, as suggesting a highly desirable treaty. Mr.
Holls, in the note already quoted,^ tells us that in July, 1895, the
French Chamber of Deputies unanimously resolved: "The
Chamber invites the Government to negotiate as soon as possible
a permanent treaty of arbitration between the French Republic
and the Republic of the United States." The Senate and House
of Representatives of the latter State had previously, in 1890,
adopted a resolution, reported by Mr. Sherman from the Com-
mittee on Foreign Relations, requesting the President to " invite
from time to time, as fit occasions may arise, negotiations with
any Government with which the United States may have diplo-
matic relations, to the end that . differences or disputes arising
between the two Governments which cannot be adjusted by
diplomatic agency may be referred to arbitration, and be peaceably
adjusted by such means." Thus we have the two Houses of
Parliament m the United States and the Lower House in France
— ^with which there is no reason to doubt the French Senate would
heartily agree — united in recommending such a treaty. The long
and cordial relations between France and the United States, two
countries which stand in the van of intellectual and moral
* "The Peace Conference at the Hague," pp. 233, 234, note.
( 54 )
progress, are eminently favourable to such a union between these
two countries, which have never yet been at war, but whose
widely differing industrial conditions and habits of thought have
before now led to dangerous irritation. I would earnestly
commend this suggestion to our members in both countries.
Yet another suggestion, as bold as it is timely, has recently
been brought into prominence by our colleague Mr. Thomas
Barclay, a Scotsman by birth, a member of the English Bar, and
for many years past a resident in Paris, who is thus peculiarly
quaUfied as the spokesman of his own project in this Conference.
It is, as you are all aware, that of a General Arbitration Treaty
between France and Great Britain. I leave it to him to urge, as
he has already done before sympathetic audiences in Paris, and
in an able article in the Fortnightly Review of June last, the claims
of this project. For myself, as an Englishman who has had some-
what unusual opportunities of learning to appreciate the lofty
qualities of the French people, I can but say how glad and
thankful I should be to see such a powerful bond of union as
the proposed treaty would create between us and our nearest
neighbours.
The trio of general arbitration treaties above suggested form a
worthy object for the efforts of an International Association like ours.
If carried through within a short time, they will constitute a fitting
commencement, as regards international relations of the twentieth
century, and may well be the harbingers of a new era of peace,
to follow that of universal miUtarism. Three of the foremost
nations of the world, the United Kingdom, the United States, and
France will be for ever freed from the fear of war between each
other ; for it is inconceivable that the people of any one of these
countries would deliberately break a treaty, once concluded,
which shall substitute the calm judgment of an international
tribunal for what is called the arbitrament of war, which is really
an appeal from reason to brute force. As regards the relations of
these three nations with each other the saying will at last have
been realised : Le Droit prime la Force* Other nations will surely
not be slow to follow the example, till at length the whole civilised
( 55 )
world shall be united in peaceful and juridical relations, of which
the Hague Arbitration Court will be at once the seal and crown.
Mr. Thomas Barclay (Paris) read the following Paper :—
I.
The promotion of arbitration between States has long been
one of the leading purposes of this Association. Our Brussels
meeting in 1895 was practically devoted to the subject, and later
events have proved the significance of the fact that the discussion
took place under the chairmanship of the then Attorney-General
of England. Sir Richard Webster's memorable speech on that
occasion foreshadowed the part Great Britain as a State has since
taken. I hope it is equally significant that as Lord Alverstone
and Lord Chief Justice of England he is again presiding at the
discussion of another side of arbitration.
Great Britain has now openly joined the ranks of the votaries
of arbitration. In 1897 she signed the Anglo-American Treaty
of Arbitration. At the Hague Conference her representatives
were among the most ardent champions of arbitration generally.
In July, 1899, she signed the treaty by which the Permanent
Court at the Hague was instituted, and she has been among the
first to appoint the Englishmen who are to sit on it as representa-
tives of this country. As regards the Anglo-American Treaty of
General Arbitration, as you know, it only fell through owing to
the majority of the Senate, which voted for it being insufficient
by the United States constitution to carry it
In short, Great Britain, we may say, is won over to what may
be called extension of the idea of arbitration as a satisfactory
method of settling international difficulties.
France is not less so. At the Hague Conference she was as
ardent as Great Britain in support of the permanent court, and
of arbitration generally.
No one will deny that our foremost need is of good relations
with the United States. But as little will any one deny that that
( S6 )
of good relations with France takes the next place among our
international needs.
It would be out of place here to deal with the material or
commercial side of the question. The geographical position of
Great Britain and France towards each other, tlieir political
development side by side, their colonial rivalry, their constant
and increasing intercourse, apart from their respective material or
commercial interests, are sufficient grounds in both countries to
warrant the warmest advocacy of a treaty between the two
countries. I will rather assume that we are all agreed that a
permanent treaty of arbitration between any two great neigh-
bouring States is at all times worth a great effort on the part of
all friends of peace, and that as between Great Britain and
France such a treaty is particularly desirable.
I have pointed out elsewhere^ that though there is no
question between England and France capable on its merits of
leading to war, it is nevertheless true that the only war seriously
apprehended of late years, in either Great Britain or France, is
one between these two countries, and that, though we have had
many difficulties with France in the course of the last quarter of a
century, in connection with Egypt, the New Hebrides, the French
Shore, Tunis, Siam, Madagascar, the Niger, and other matters,
they have never brought us so near a dangerous estrangement as
misunderstandings of a vague character connected with national
affections, feelings, or dignity.
This shows that diplomacy suffices to deal with the merits of
even really serious questions, and that the danger is owing to the
absence of some means of blunting the effect of shocks to popular
feeling.
Great nations are generally sensitive on points of national
prestige and dignity, and the British and French are exceptionally
so. When national susceptibilities are roused, everyone knows
that the most trifling incidents assume a gravity out of all pro-
portion to the real points at issue, and in the presence of an
unreasoning public opinion diplomacy is helpless.
' Fortnightly Review^ June 1901.
{ 57 )
II.
War between great States entails such a gigantic upheaval of
the national foundations that it is always the interest of nations
to remove the danger of it to the farthest limit of possible
contingencies. This, I think, even the most bellicose will admit
Yet at present we live on the brink of war in every great
European State. A mere trifle at any moment can set all the
forces of destruction in motion and plunge nations into the
horrors of bloodshed and wholesale devastation. Should any
great country with widespread interests be exposed to such
consequences of mere gusts of public opinion either at home or
in neighbouring countries ?
This it was, no doubt, that struck British and American states-
men, and led them to sign the permanent treaty of arbitration
under which all differences between Great Britain and the United
States, which diplomacy had failed to settle, were to be submitted
to the tribunals provided under it. There were to be three classes
of arbitral tribunals. For questions of indemnity up to ;^ioo,ooo,
three arbitrators were necessary. When more than this sum was
in dispute, five arbitrators were to be called in. Any controversy
involving the determination of territorial claims or any question
of principle of grave general importance affecting the national
rights of either state was to be submitted to a tribunal composed
of six members, three of whom were to be Judges of the British
Supreme Court of Judicature, or members of the Judicial
Committee of the Privy Council, to be nominated by Her
Britannic Majesty, and the other three of whom were to be
Judges of the Supreme Court of the United States, or Justices of
the Circuit Courts, to be nominated by the President of the
United States. The award by a majority of not less than five to
one was to be final.
In case of an award made by less than the prescribed majority,
the award was also to be final unless either Power, within three
months after the award had been reported, protested, in which
case the award was to have no validity. In the event of an award
( 58 )
made by less than the prescribed majority, and protested in the
way mentioned, or if the members of the arbitral tribunal were
equally divided, there was to be no recourse to hostile measures
of any description until the mediation of one or more friendly
Powers had been invited by one or both of the high contracting
parties.
This remarkable treaty, which owes the principle underlying
it, I believe, to the noble Lord, our President, and its final form
to the distinguished diplomatist and jurist who represents this
country at Washington, Lord Paunccfote, and the distinguished
American statesmen and jurists with whom it was negotiated,
though signed by the two Governments, did not, I have said,
obtain the support of the requisite majority in the United Stales
Senate, and therefore was not ratified on the other side of the
Atlantic.
IIL
The proposal I have made, and now make to you, is simply
to recommend the Governments of Great Britain and France to
consider whether some similar treaty could not be devised to
parry automatically the effects of transitory ebullitions of public
feeling.
As T have ahready had an opportunity of placing the proposal
before the public both in England and France, I have also had
the opportunity of hearing a certain number of comments on it
In a recent Review article ^ I showed that French opinion is
favourably inclined. In England, where the public form their
opinions more slowly and no doubt more surely, the subject has
been rather more closely examined. The views expressed fall
into the following three groups : —
I. England has interests in different parts of the globe which
cannot be left to decision by judicial methods. Arbitration
implies the application by impartial men of the rules which
determine the actions of law-abiding citizens. But between States
it is not always possible to abide by the rules observed by law-
* Fortnightly Review^ June 1 901.
( 59 )
abiding citizens. There are the fait accompli^ national dignity,
and especially overwhelming interest, for which it is difficult to
formulate rules to be applied by impartial arbitrators called upon
to administer natural justice.
3. England could not join France in a treaty of arbitration,
unless France would agree to certain clauses which would prevent
the raising of questions merely to get them submitted to an
arbitration the result of which she knew must be in her favour, if
decided on purely judicial grounds.
3. An Anglo-French Treaty is unnecessary, now that the
Hague Tribunal exists, and all that can now be done is to induce
States to submit all their differences to it.
The answer in all three cases will be very much the same.
As regards the first, it. is just on account of the difficulty of
deciding many international questions according to the rules of
natural justice that the system followed in the abortive Anglo-
American Treaty seem so strongly to commend itself. In con-
fining the Court to arbitrators chosen by the States themselves
and dispensing with the foreigner as umpire, that treaty eliminated
the possibility of an independent but irresponsible foreigner
giving his vote to the country which might have abstract justice
on its side, against the overwhelming weight of expediency on
the other. It is evident that six great and practised judges, three
on each side, feeling all the gravity of their responsibility to their
nation, must necessarily approach a great national question in a
very different spirit from that of one whose very character of
unbiassed independence excludes the discussion of considerations
which may have given rise to strong public feeling in one or the
other country.
It is easily conceivable that experienced judges would bear in
mind that attempts to enforce abstract justice, beautiful as it is,
may lead as between nations to the bitterest resentment, and that
the best judgments, as in those of citizen life, are those which take
due account of consequences for both sides. But under the
Anglo-American scheme a bare majority was not to suffice. It
was made necessary, in order to make the decision binding, that
( 6o )
five of the six arbitrators should be agreed, that two of the
three arbitrators of the one side should be ranged with the
three of the other. If this majority was not obtained and only
a bare majority was obtained, the decision was nevertheless to be
binding if the Party against which it was given did not repudiate
it within three months. The recourse to a foreigner was only to
take place if the arbitrators were equally divided, and even then it
was only to take the form of a request for friendly mediation.
There was thus no danger of considerations of expediency, as
distinguished from those of abstract justice, being overlooked.
The second objection has practically been answered by my
observations on the first, and as regards the third, such pre-
cautions were taken by the Hague Plenipotentiaries to preserve
the optional character of submissions to the Court that no great
Power is likely to agree to compulsory submission of all cases to
its jurisdiction for a long time to come.
In fact, the institution of a permanent tribunal of arbitration,
though an admirable beginning, has made no substantial change
of principle. The optional character of the submission to it
leaves it at the discretion of the parties to determine whether the
Court has jurisdiction or not, and Governments, as heretofore, for
obvious reasons, will necessarily look for guidance to the national
feeling behind them, before electing, in really dangerous cases of
difference, to seek arbitration.
My points then are these : —
ist That there is no provision in the Hague Convention to
delay recourse to arms, where questions of national dignity and
grave general importance affecting national rights are at stake.
2nd That there is no prospect of the contracting Powers
binding themselves to submit all their differences to the arbitration
of other States, or of the subjects of other States.
3rd. I therefore propose that the best course is to create a
buffer system, similar to that worked out in the British-American
abortive Treaty, which will cause sufficient delay and negotiation
to prevent hasty declarations of war.
( 6f )
The scheme of this system has already not only received the
consent of, but has been officially adopted by, the Governments
of the two most practical nations in the world. It has been
deliberately approved by a majority of the American Senate, and
warmly received by the public opinion of Great Britain, where no
senatorial ratification is necessary. Let us hope that the United
States Senate will some day ratify a measure which might possibly
secure the peace of the North American continent for ages to
come. I therefore propose to you to adopt a resolution which,
while putting once more on record that this Association approves
of all efforts to extend the scope of the principle of arbitration,
refers especially to Great Britain, the United States, and France,
whose co-operation would probably lead to. the adoption by other
great Powers of similar treaties. My motion, therefore, reads as
follows : —
'* I. That the Association views with satisfaction all attempts
to adopt arbitration as a permanent means of solving
difficulties between States ;
" 2. That it deeply regrets the failure of the efforts to carry
a permanent treaty of arbitration between Great Britain
and the United States, and trusts that the valuable
efforts of Lord Pauncefote will ultimately be successful ;
and
** 3. That in view of the favourable opinions expressed by
the friends of peace and the public generally in France,
it is desirable and opportune that efforts be made to
bring about the conclusion of a similar treaty between
Great Britain and France."
I hope, gentlemen, it is a happy omen that it is in Scotland
that this proposal is made. You are doubtless aware that
Scotland and France in days of yore were allied by a treaty
which lasted probably longer than any other treaty the world has
seen. Their alliance lasted 500 years. It was a treaty which
( 62 )
bound the nations to such an extent to each other that you wiU
read in Shakespeare a couplet which warned England that
" Who will France win
First with Scotland must be^in."
I hope the beginning in Scotland to-day of an agitation in these
isles in favour of a treaty of arbitration with France will win
France over to the cause of fraternal peace with this country.
The President : Gentlemen, it will be convenient that I
should put these resolutions presently, and I will at once take
the discussion upon them. Having regard to the pressure on our
time we must limit the speeches to five minutes.
Alderman Snape (Liverpool) : Lord Alverstone, my lords and
gentlemen, it is with great pleasure that I rise to second the resolu-
tion which Dr. Barclay has proposed. As one of the few who was
associated with the founders of this Association, there seems to me
to be a peculiar fitness in submitting resolutions of the character
you have had on this occasion. I was specially pleased to hear the
recommendation of your lordship on the fact that this subject
represents so prominent a place in your programme. I hope it
will retain such a position in future Conferences of the Associa-
tion. The Association was formed for the very purpose of
promoting the adoption of this principle of International Arbi-
tration. The difficulty had arisen after the Geneva Arbitration in
connection with the Alabama case, that there was no law upon
which the arbitrators could arrive at a decision, and they had to
devise an ex post facto law on which their decision was afterwards
made. In consequence of that it seemed desirable to those
who were very much in earnest in the matter that the jurists of
the various countries of the civilised world should be gathered
together, to see if there could not be some reform and some
codification of International Law to prevent any such difficulty
arising in future cases of arbitration as that which had arisen in
the case of the Alabama, An Association for the Codification
( 63 )
and Reform of International Law was formed. It met, I think,
for the first time at the Hague,^ and I think that of those
who were present on that occasion only my friend Dr. Barclay
and myself are here to-day. There were many eminent men
present there, as we have here to-day, like David Dudley Field,
of America, and Henry Richard, a Member of our own Parlia-
ment, known as the apostle of arbitration, and a large number of
others. It was a brilliant and very successful Conference, held
under the auspices and with the assistance of the Dutch Govern-
ment. The Association has continued up till now. This subject
has from time to time occupied the discussions of its members, but
has been pointed out from the Chair that the efforts that have
been made to establish treaties of arbitration have not always
been successful The one in 1897 with the United States of
America was not carried into effect, and yet I think we must not
be too ready to assume that failure has resulted because a treaty
has not actually been concluded I think most of you must
have heard, as I have, from prominent men on both sides of
the Atlantic, that although the treaty of arbitration was not
actually ratified, yet the negotiations themselves and the discussions
that had taken place were of such a character as to make it
for ever an impossibility for war to arise between ourselves and
the United States of America. Even though we did not get the
treaty signed, we had the credit of arousing a sentiment of such
character and power as ensures peace for the future. In a
previous case with which America had to do, and we ourselves
had no direct concern, there was a similar failure. I had the
honour in 1891 of reading a paper on this subject in Washington
and having, amongst a large gathering assembled on that occasion,
President Harrison and some of the Secretaries of State of the
American Government I delivered an address, and in the course
of. the discussion President Harrison took part. That speech
' This is not quite accurate. The first Conference was held at Brussels in
1873, ^^c second at Geneva in 1874, and that at the Hague, in 1875, ^'^ ^^
third. Mr. Alexander was also present at the Hague Conference.— Hon.
Gkn. S£CS.
( 64 )
came across the Atlantic — my remarks probably did not, but his
did, and I remember well — I do not know whether your Lordship
was present then in the House of Commons, but we were both in
that Parliament — I remember hearing Mr. Gladstone make a
citation from that speech in the course of the discussion which
took place at that time upon this very subject. Speeches made
by men of distinction, by such men as President Harrison, do
have their effect in being read and exercising influence upon
the Governments of the various civilised nations. The failure to
which I referred just now, with which the Americans are more
concerned than ourselves, was the one which arose out of a Pan-
American Conference that had been held in 1890. The repre-
sentatives of the various American States, North and South
America, had gathered in Washington, and the object of the
gathering was to endeavour to bring about a Pan-American
Agreement providing that all disputes arising between the various
States north and south should be submitted to arbitration. The
representatives agreed to the adoption of such a treaty, but
when they went back to their respective Governments they found
difficulties arising, and only in a few cases were the agree-
ments of the representatives ratified by the Powers which had
deputed them to attend the Conference. Though that was
the result, still a better feeling has prevailed, and in the main
the adoption of the principle of arbitration has undoubtedly
grown in influence and extent We may not always get
treaties adopted immediately — I understood from that quotation
which your lordship read from President Cleveland's message
that one of the chief difficulties was that of obtaining an immediate
and unlimited treaty of arbitration — a treaty of arbitration which
would be immediate and unlimited in its operation; and there
is no doubt there will be for a long time to come reservations
in all such treaties. If that be so in the case of two Powers
only, when we come to large gatherings of the representatives
of many Powers such as that which was held at the Hague, the
difficulties are certainly diminished if a resolution such as that
laid before the Conference by Dr. Barclay, and which I rise to
( 65 )
second, were adopted. Eight Parliaments are agreed that the
principle of arbitration \$. one that should be adopted. Surely if
that be declared to be the opinion of several Parliaments of the
cwilised nations there ought to be some means provided by which
the Governments can be brought together and embody that
opinion in an agreement or treaty of some kind. We may not
succeed, perhaps, on a large scale, but we may do it by degrees,
and the suggestion that we should attempt it, nation by naticn, is
one that I think to be more feasible than if we made a more
comprehensive endeavour, and one to which I trust this Con-
ference will give its approval. I think we shall proceed with
more hopeful prospect of success if we do so nation by nation.
Our progress may be slow, but it will more effectually help to
bring about that time of which Tennyson speaks, when
** The common sense of most shall bold a fretful realm in awe.
And the kindly earth shall slumber, lapt in universal law.*'
Mr. Gray Hill (Liverpool; : My Lord Chief Justice, my lords
and gentlemen, what we have heard from the mover and seconder
of these resolutions has been full of interest, and has been
valuable, but I have not heard anything from either gentleman
which appears to me to grapple with the real difficulty before
us. It may be taken that every one in this room is in favour
of peace between our country and other countries, and is in
favour of determining all questions that can be fairly left to
arbitration by the means of arbitration, and is particularly desirous
of peace and desirous of arbitration with our nearest neighbour
France. But there are questions which must arise between
nations which no nation will beforehand consent to refer to
arbitration, and the difficulty is in asking a nation to bind them-
selves to refer every question that will be raised, because in so
agreeing they will bind themselves to refer certain questions
which they are unwilling to leave to arbitration. Now, it is
suggested that an arbitration agreement should be made similar to
that which was signed by the United States, but which was not
confirmed by the Senate of that country. I find in that Treaty
F
( 66 )
that if any claim arises which is not a pecuniary claim under a
Certain sum, it has to be determined by the decision of two
arbitrators, one chosen by each country, and an umpire, and if
the decision of that body is objected to the question must be
reviewed by another Court of Arbitration consisting of five jurists,
and it is open to one of the parties to claim before the first
tribunal, or, I suppose, the tribunal of review, that the question^
involves principles of grave general importance affecting national
rights, and that it should be withdrawn from that body and sent
to another body consisting of six judges. The body before whom
the objection is taken may decide that the objection is right, or
they may decide that it is wrong. If they decide that the
objection is wrong, they continue seised with the power which
was placed in their hands ; but if they decide it is right, then
the matter is referred to the decision of six judges, three chosen
from each country. That is no doubt the best kind of tribunal
that could possibly be obtained, and it is required as a matter
of precaution, in view of the difficulty which I am pointing out,
that in order to get a decision which is to be binding five must
be on one side as against one on the other. There are, however,
questions which arise, which no country, I take it, would refer to
three arbitrators without qualification, to five arbitrators who are
called jurists, or to six arbitrators who are called judges. Suppose
we take a question which at once comes to our minds ; suppose
France were to say to England, *• You ought to go out of Egypt :
let us refer the matter to arbitration." We should reply, " We
are sorry to disagree with you; we cannot refer that case to
arbitration." If we bound ourselves by this Treaty we should be
bound to refer it to arbitration. This country is not to be bound
to accept the decision of an Arbitration Court on this question^
however fairly that Court may consider it Similarly, one can
suppose claims that might be made against France by England
which France might say it would not refer to arbitration because
they involve questions of great general importance affecting the
national rights. Now, if it were possible to devise some scheme
by which these great questions could be kept out of the way,
I should see no objection— on the contrary, every advantage
( 67 )
— in having such a treaty as is here suggested, but unless
something can be put forward which will enable us to put
these questions on one side, I do not see my way to agree with
this resolution. How is it possible to get a tribunal to which
nations will be willing to trust questions affecting their vital
interests ? Can we get any tribunal which will sift the question
in the first instance and say this question is of a class to go to
arbitration, or that question is not of a class to go to arbitration?
There is one clause in this treaty which seems to me a very good
clause, which is not necessarily a part of the arbitration scheme.
That clause provides that in case the award is objected to, or the
arbitration breaks down, there shall be no declaration of hostilities
without having resort to the intervention of another Power. That
has nothing to do with my objection at alL
Mr, W. Martin Wood (London) : My lords and gentlemen,
I rise with the object of eliciting, if possible, some direct opinion
of your lordship on the question which is directly raised in one
of the papers read before this resolution, and which is, in fact, so
to speak, the previous question, and would put the resolution out
of Court I refer to the question which has been raised whether,
now that the Hague Convention has done so much, and has
framed the procedure by which twelve or thirteen nations are
bound, whether it is in order or is desirable for two nations, such
as England and the United States, or France and England, to go
on with other treaties for the same object Dr. Evans Darby, in
his paper, warns us very seriously against the danger that may
result from attempting to supplement the Hague Convention.
He says: ''It surely ought not to be necessary to insist on
the mischief which may accrue, not only from diplomatic action
like that reported in the TinuSy but from the agitation to set
aside the Hague Convention by new agreements between separate
States." I would put it to you with regard to this resolution, does
this proposal of Dr. Barclay's, in effect, set aside the Hague
Convention, as just stated? because that is a very serious
matter. Many^ of us have followed this subject for many years,
F 2
( 68 )
and, as you have reminded us, the course of this movement has
been exceedingly interesting. Are we to suppose that all that
has been done has been completed and finished by the Hague
Convention, and no more remains to be done? I should like
to ask whether the Hague Convention, for which we are so
thankful, is supposed to finish the whole question of procedure,
and whether it should be left now to the nations to apply to that
tribunal? Of course, logically, that is so, no doubt These
twelve or thirteen Powers have jointly and severally bound
themselves to go to the Hague Convention with their differences ;
but this is not exactly a matter, so to speak, of common law or
ordinary life. It seems to me that something is left to be done,
and Dr. Barclay's proposal really goes in that direction. Also, I
should like to remark as to your review of the men who have
laboured in this cause, was there not one name omitted, that of
Sir Edmund Hornby? The proposal he brought up, long before
the Hague Convention was thought of, was most complete. He
urged that such a Tribunal should be one of competence, inde-
pendence, and impartiality. It it now said, for reisons that have
been stated, that it is desirable to have men of the countries
concerned; but this is a great contrast to the idea of the
Hague Conference that the arbitrators should be men of other
nations, so that it might be impartial.
The President : There is no doubt about this. In the first
place it is quite clear that arbitration under the Hague Conven-
tion is entirely optional, that there is no compulsion. Article 19
of the Hague Convention abundantly proves that the matter is
not concluded. I did happen to mention the name of Sir
Edmund Hornby, and I did refer to his scheme as having been
partially carried out by the Hague Convention. While I quite
understand and agree with Mr. Gray Hill that there will be
occasions on which nations themselves will withdraw a matter
from arbitration on the grounds mentioned and contemplated by
the treaty in question, the moral effect of having a treaty which
shall primA facie make it obligatory on two nations to refer
matters to arbitration must be very great, not only as affecting
( 69 )
»
the public mind, but as affecting the minds of the statesmen who
have to control their destinies. I sincerely hope that these
resolutions will be carried by the Association.
The Honourable Lynde Harrison (Connecticut) : My lords
and gentlemen, as a Member of this Association from the United
States, I desire most heartily to support the motion now before
the Association. Some references have been made to the fact
that the trea.ty presented to the United States Senate in January,
1897, failed to be ratified. There are peculiar reasons, which we
understand, why it could not be conveniently ratified. We have
politics in our country once in four years. (Laughter.)
January nth, 1897, was within two months of the time when
President Cleveland was to retire and his successor had been
elected. The majority of the Senate unfortunately at that time
were either personally or politically opposed to Mr. Cleveland,
and human nature exists even in the United States Senate. But
since 1897 the people of the United States — the thinking people
of the United States — have learned, especially on account of
some of the incidents connected wiih our war with Spain, that
our brothers and cousins in Great Britain are really our brothers
and cousins, and the feeling of friendship and kinship between
the people of the United States of America and those of England,
and the feeling of our people for our kin here is very much
warmer and stronger than it ever was before. (Hear, hear.)
Therefore I believe that a treaty prepared upon the lines presented
in 1897 by the Senate, with possibly some modification, could
within the next two or three years, if the Government of Great
Britain is ready for such a treaty, be presented to the Senate of
the United States, and I believe the President of the United
States, who is a peace-loving and God-fearing man, would be
very glad to see such a treaty ratified, and the passing of this
motion will do something towards bringing about what the angel
chorus sang at Bethlehem : " Peace on earth, good will toward
men."
Dr. GovARE (Paris), speaking in French, said that, as the only
( 70 )
Frenchman present, he could not remain silent when Mr. Barclay
had proposed a motion for an arbitration treaty between France
and Great Britain. He believed that Mr. Barclay was perfectly
right in saying that the practically unanimous voice of the French
people favoured such a treaty. Neither in the French press nor
amongst the le^ing men in France would there be found any
opposition to it Never for many years past had there been so
cordial a feeling, such complete harmony, between France and
Great Britain, as since the Exhibition of last year. The French
people would see with great pleasure the conclusion of a treaty
of the kind suggested. With regard to Mr. Gray Hill's objection,
there would doubless be questions, as he had said, which no
nation would be willing to leave to the decision of arbitrators.
For instance, the question of Alsace-Lorraine was one which no
Frenchman, and probably no German either, would consent to
submit to an Arbitration Court But was that any reason why
they should stand still and do nothing? He thought not, and
hoped that the resolutions would be cordially adopted, being
certain that they would be well received across the Channel
Mr. Cephas Brainerd (New York) : My lords and gende-
men, I hardly want to vote for the three resolutions, for the
reason that I felt it my duty to oppose the treaty between Great
Britain and the United States on the ground which my friend has
stated, that by its terms it carried every possible question before
the tribunal, and I felt that that really was the ground upon which
the treaty failed in the Senate of the United States. I still feel so,
and I feel that a treaty which is so uncertain in its terms as I felt
that to be, in that regard would certainly fail again in the Senate ;
and although I am sorry to say — perhaps I ought to be glad to say
— that we do have politics in the Senate of the United States, I
believe you have politics in this country, too, to some extent, but
probably less than we have in America, If my friend, Dr. Barclay,
can put this resolution so tliat it will exclude the idea which my
friend here (Mr. Gray Hill) presented, I should be very glad to
vote for it, but not otherwise.
( 71 )
Captain T. V. & Angier (London) : Up to the present I think it
has always been experts who have given their opinions on the
subject before us, but I can assure you that commercial men
think a good deal, and a good deal more about these important
subjects than the majority of experts may imagine. The view
which they take of these subjects is not a narrow one. I must say
that in a commercial sense, looking at it from a commercial
interest and point of view, I am very strongly in favour of the
resolution before us. I do not see any deterring reason or any
great objection in the points raised by my dear old friend, Mr. Gray
HilL In looking at it from our point of view we have a very
practical experience of arbitration, and it is within the last few
years that we have grown very much more in favour of arbitration
than in years past There was a time when no commercial man
would dream of attempting arbitration when he had a dispute with
the opposite party to an agreement. Of late years I may say that
the system of arbitration has enormously grown in favour in all
commercial transactions. The difficulty raised by Mr. Gray Hill
has been often and often experienced in such contracts, but where
the question at issue has been, in the minds of both parties,
outside the capability of the ordinary lay arbitrator, there has very
seldom been a difficulty in agreeing to refuse arbitration, and
invoke a legal decision. No practical working arbitration clause
has ever yet been found to be an absolute deterrent from settling
the point by a higher tribunal. Looking at* it from a higher
) oint of view, I must say I have no objection, and I strongly
support the resolution as put
Mr. Barclay: I can only reply briefly at this late hour.
Mr. Gray Hill has intimated to me that if I modify the last hne
so as to read, '* Efforts be made to bring about the conclusion of
a treaty of arbitration between Great Britain and France," this
will give satisfaction to him and other gentlemen who agree
with him. I should like to say, as regards the Egyptian
Question and other questions of that kind, it is not for us
to discuss whether they constitute an objection or not The
( 72 )
negotiators, if these difficulties exist, will of course grapple with
them.
The resolutions were then put to the meeting with the
amendment proposed by Mr. Barclay, and some other modifica-
tions suggested by the President, as follows : —
I. That this Association views with satisfaction all attempts
to widen the scope of arbitration as a permanent means
of solving difficulties between States.
^ 2. That it regrets the failure of the efforts to carry a
permanent treaty of arbitration between Great Britain
and the United States, and trusts that the Governments
of the two countries will continue their efforts for that
purpose. That in view of the favourable opinions
expressed by the friends of peace and the public
generally in France, it is desirable and opportune that
efforts be made to bring about the conclusion of a treaty
of arbitration between Great Britain and France.
The resolutions were adopted mm, con. with much applause.
The President: As we have not time to complete and
conclude the discussion on the '* Marriage Laws," and as we are
honoured to-day with the presence of Professor Walton, of
McGill University, Montreal, and it would be a convenience to
him to have his paper read — and I know that the members of
the Scottish Bench and Bar who are present would like to hear it
— I would ask him to be good enough to read it now. Perhaps
it would be convenient to say that we shall begin to-morrow
morning with the papers and discussion on '' International Rules
of Marine Insurance." On Thursday morning we will take
first the papers on " Marriage Laws," and if Mr. Brainerd will
preside on that occasion I shall be much obliged to him.
Mr. F. P. Walton (Advocate, Professor of Roman Law and
Dean of Faculty of Law in McGill University, Montreal), then
read the following Paper : —
( 73 )
THE RELATIONSHIP OF THE LAW OF FRANCE TO
THE LAW OF SCOTLAND.
The Scots Law and the Droit Civil Fran^ais are to a great extent
derived from the same sources. It is not surprising, therefore,
that there are many resemblances between them. Of direct
borrowing by the one from the other there is little evidence. If
we turn over Morison's •• Dictionary of Decisions " — our great
storehouse of old cases — we find an occasional reference to the
French civilians. But far more frequent are the names of the
great Dutchmen, Vmnius and John Voet Their ponderous
tomes were always at the elbow of the old Scots advocates.
Leyden, where each of these worthies had in his day prelected,
was a favourite resort of Scots students in the seventeenth and
eighteenth centuries. Probably not a few of those who cited
from Voet in the Scots Court had themselves listened to his Latin
lectures in Holland.
Pothier is, I suppose, the only French writer whose works are
cited with any approach to frequency in our Courts to-day. A
witty judge, to whom Balfour's Praciicks was cited, is unofficially
reported to have ejaculated, ** Balfour's Practicks 1 Balfour s
Fiddlesticks 1 " Equally scant respect would be shown to a
citation from a French writer of that age. The modern French
civilians are altogether neglected in Scotland. This is partly
because since the Union the authority of decided cases has
become so much greater than that of text-writers. It is partly
also from a rather mistaken impression that a commentary on the
French Code would turn too much on the interpretation of
particular words to be applicable to us. This is really not the
case. The French commentors have never treated their codes
as we treat statutes. The commentary is not a paraphrase to
explain the literal meaning of the article. It is a historical
account of the law upon the point, showing what was the intention
of the codifiers. In some classes of cases useful suggestions for
argument might be found in such admirable works as the com-
( 74 )
mentaties of Messieurs Aubry and Rau or Monsieur Hue, to
mention two out of many.
But, after all, considering that the Scots lawyer, nowadays,
has by the aid of Digests and Indices to ransack the reports of
more than three centuries, he may reasonably claim to be excused
from finding out the views of modem Continental writers. If the
question has two sides the civilians will be divided. And, even
though for once they were unanimous, the Scots Court would not be
relieved from the duty of making up its own mind upon the point.
The Scots law has long ceased to be a system of civil law in
the same sense as the law of France, Germany, or Italy. It is,
first and foremost, a system of case law. I am aware that this
statement rather shocks the Scots lawyer. It is true that in our
institutional writers we have a large body of law which does not
depend upon precedent [JVb/e. — The Lord Advocate, at the
discussion in Glasgow, expressed the opinion that Scots lawyers
were still more willing than their English brethren to argue cases
upon principle, without regard to previous decisions. But I
hardly think that his lordship would dispute that the tendency is
now, and has long been, in the other direction.^] But the mass of
cases is so great that some precedents can generally be hunted up,
and the great majority of arguments upon questions of law now
consist mainly in expounding the bearing of previous decisions.
Like the laws of Lower Canada and of Louisiana, the Scots
law has been profoundly modified by contact with the English
common law. They have all borrowed from England the guiding
rule of the authority of judicial precedents. A little observation
of the working of both systems will convince one of the great gulf
which this at once creates between our law and the French or the
German. Scotland, Quebec and Louisiana all have, if I may
speak very roughly, a body of English commercial law, and all
stand now midway between the common law system of Engljind
and America and the civil law systems of Europe. The union
with England changed the current of the history of our law. As
Professor Dove- Wilson says, " It is free for the Scottish lawyer to
* Tais passage was added subsequently to the Conference*
( 75 )
speculate that — had there beea no Union — ^Scottish law would
have gone on to incorporate more and more of Roman law, after
Continental models, and would have ended as they have done,
by thb time, in codification." ^
The Scots law and the French law were more like each other
in the seventeenth century than they are now, because since then
the Scots law has become a system of case law, and under the
influence of English cases has undergone, and is still undergoing,
a slow assimilation with English law. Sbce the seventeenth
century the French law also has undergone a much more sudden
change which makes it less like our old Scots law. It has passed
through the Revolution. That overwheUning deluge submerged
for ever many of the ancient landmarks of France. No incon-
siderable part of the old law disappeared with the ancient regime.
The Code NapoWon was a great work of construction — the most
permanent constructive work of the Revolutionary period. In
some important branches of law, such as obligations, there are no
vital changes, but other parts are transformed almost beyond
recognition. The Land Law and the Law of Succession have been
recast Feudalism is swept away. Entails are prohibited. No
trace is left of primogeniture. Even the harmless term a " per-
sonal servitude" is thought too suggestive of tyranny. The
unlearned man might suppose that the res serviens was a person
and not a house or a farm. Irregular marriages had been done
away with in France for two centuries — ever since the Council of
Trent But a good deal of the canon law of marriage survived
until the Revolution, when it went by the board, e.g.^ the
French law still recognised a large number of impedimenta diri-
mentia^ any one of which was a ground for getting a marriage
annulled. For the canon law, while loudly protesting the
sacramental and therefore the indissoluble nature of marriage, had
always been very ingenious in finding for a spouse who wanted to
be free a ground for showing that no marriage had ever existed.
Now the long string of impediments b cut down to a minimum.
' "Reception of Roman Law in Scotland," Juridical Review^ 1897,
P- 393-
( 76 )
France got civil marriage, and, for a few years, divorce by mutual
consent
Between 1789 and 1804 more radical changes were made in
the French law than have been made in ours by the legislation of
three centuries. Between the law as we find it in Pothier and the
law of the Code Napoldon there is a great gulf. In comparing
the French and Scots laws we must not forget that the two laws
have been drifting apart since the middle of the eighteenth
century. Since then the Scots law has come under English
influence, and the French law has been recast and defeudalised.
Having glanced at the reason of their modern divergence, I
turn to notice the reasons of their similarity, which is still great,
though it was anciently much greater.
The two laws resemble each other, because both are drawn
mainly from the following four sources : —
1. The customs of the Germanic tribes which overran the
Empire.
2. The Roman Law.
3. Feudalism.
4. The Canon Law.
I will try to indicate, in a few words, the parts of the law
which both in France and Scotland are derived from each of
these sources.
I. From the customs of the barbarians, both countries have
taken the peculiar rules which limit the freedom of a man to
dispose of his estate by will. The surviving husband or wife, as
the case may be, has certain rights, and the children have a certain
right. And these are not mere rights of succession, for they over-
ride any contrary disposition by will. In Scotland, the widow is
entitled to hery^J" reliciae^ i.e. to one-third of the movable estate of
her husband, or one-halt if there are no children. Further, she is
entitled to tetce^ />. to the life-rent of one-third of his immovables.
I'he widower is entitled to courtesy^ i,e, to the life-rent of all the
Wife's immovables, but his right is subject to a condition to which
I shall refer in a moment. And, since the Married Women's
( 77 )
Property Act, x 88 1, he is entitled to one-half or one-third of his
wife's movables. Before that Act, as her movables all passed to
him at the marriage, this jus rdicti was not needed In their turn,
a man's children are entitled to legitiniy />. to an equal share of
one-half his movable estate if there is no widow, or of one-third
if there is.
All this is in marked contrast to the law of England. There,
as we all know, a millionaire who dies, leaving a widow and ten
children, may bequeath his whole estate to a Dog's Home. But
it is often forgotten that this liberty did not always exist. In
Henry II.'s time, according to Glanvill, the English law as to
l^gitim and jus relktae was the same as the Scots law is to-day.
And in certain parts of England these rights existed as local
customs recognised by the law, until about seventy years ago.^
Now as regards all these rights, not exactly rights of succession
because indefeasible by will, not exactly debts because not allowed
to compete with creditors, we find singularly close analogies in
the customs of the North of France. It is impossible to read with
any attention the history of the French law of community between
husband and wife without seeing that this is, in all substantials, the
same as our old law.^
We have not the materials for determining with certainty the
date and manner of the introduction of these rules into Scotland.
Probably they were brought to us not very long after the Norman
Conquest. France was in the eleventh century already divided
for legal purposes into the two zones, called respectively les pays
de droit krit and ies pays de coutume. This demarcation persisted
till the Revolution, and is of prime importance for a comprehension
of the French law.
In the South of France, including Gascony, Languedoc, Pro-
* 2 BI. Comm., 492 ; Pollock and Maitland, " Hist, of Eng. Law," vol. ii.,
p. 346 ; Williams on Executors, 6th ed., chap. i. (cut out of last edition).
" See Viollet, " Histoire du Droit Civil Fran9ais," p. 771 ; the whole
chapter " Du K^ime des biens dans le manage," and specially as to what we
call **yi" relictae" at p. 784, as to "courtesy," p. 80$, as to "terce"
{donaifg), p. 777. For the subsequent history of these last rights in France,
see idtd. p. 812.
( 78 )
vence, the Dauphin^, Guyenne, and the Lyonnais^ the Roman
occupation had been singularly complete. The country had been
thoroughly Romanised, and was in a high state of civilisation at
the break-up of the Empire. The Roman law was fully recognised
as the law of the country. The northern barbarians did not settle
in great numbers in the southj and the Romanised Gauls were
allowed to remain in possession of their lands and to retain their
Roman law. The Roman law — the droit ecrii as it came to be
called — continued to be the common law of the Midi down to the
Revolution. In the north, where the population was sparse and
the country largely uncultivated, the barbarian invaders soon
became more numerous than the previous settlers. They did not
give up their rules of family law which they brought with them
from their forest-homes. As they settled down in different dis-
tricts with no central organisation, each district had its own body
of customary law. These were the coutumes which were after-
wards reduced to writing, and the part of France (some two-thirds
of the whole) where these customs had the force of law was called
pays de coutumes. There was a barrier of language as well as of law
between the two zones. In ihitpays de droit kcrit the common
tongue was the latsgue d'oCy the Provencal of to-day. In the pays
de coutumes it was the langue d*oil^ which has developed into
modem French.^ It is a common error to suppose that each of
these coutumes^ of which there were a great number, formed a
complete body of law. This is far from the case. A great part
of the law, including all the law of obligations, was the same for
the whole country. The really important differences between the
coutumes are in the class of Rules we are just considering. The
kernel of this barbarian law is in the branch conveniently called
applied family law. The central doctrine is that called la com-
munaute. Between husband and wife there is a community of
property, and when the marriage is dissolved this community or
common-fund has to be divided. There was a good deal of
variety in the customs as to what property fell into this com-
* See the map showing the two zones in Brissaud : " Manuel d'llistoire de
Droit Fran9ais" facing p. 152, and a list of the coutumes^ ib. p. 370.
( 79 )
munioDy and what were the shares of the partners at its
dissolution.
The widow's share — the jus relictae of our law — was not a
right of succession; it was her share of the common property
upon a division.
Lord Fraser, in his great treatise on *' Husband and Wife/'
has attempted to show that the theory of communio bonorum^ as
our older writers called it, was of late introduction into our law.
He maintained that the name was borrowed by our lawyers from
France in the seventeenth century. He argues, forcibly enough,
that it is an odd thing to speak of a fund as common property,
and yet to admit that one partner — the husband — can play ducks
and drakes with it But, with great respect for so high an
authority, I think that his chapter on Communio Bonorum is
very unconvincing. True, it is^ that during the marriage the
wife had really no rights at alL But, broadly speaking, neither
has she in France to this day, yet no one proposes to give up
the time-honoured term la communautL And Lord Fraser, as it
seems to me, quite fails to prove that in Stair's time any change
was made in the substance as opposed to the terminology of the
law. If he had shown that jus relictae and legitim were not part
of our old law, it might be worth while protesting against speaking
of a communion of goods. But that our jus relictae is precisely
analogous to the right of a French wife, commune en biens^ to her
share of the community when the division takes place is clear
when we consider the history.
It cannot be a right of succession because, in the first place,
it b indefeasible ; and, in the second place, it could formeriy be
claimed at once by the wife's representatives if she predeceased
her husband. Ntmo est haeres viventis. A man cannot be called
upon to divide his succession during his lifetime. But, until
1855,^ a Scotch husband who survived his wife might be called
upon by her representatives — perhaps second cousins in New
Zealand— to pay over to them half the goods in communion, <>.
» 18 Vict c. 23, s. 6.
( 8o )
half her movable property. Even when the wife's nrpresentatives
were the children of the marriage, it was a hard thing for a man
whose money was locked up in business suddenly to account to
them for the half of it.
But this was our old law, and it is still the law of France and
of the Province of Quebec. It is a rule which throws great
light on the nature of our jus relictae^ but as a practical rule it
seems to me to have nothing but its antiquity to recommend it.
By our old law also the community did not begin at the
marriage. It began when a child was bom, or at the end of
a year and a day, whichever first happened. And we find the
same rule in some of the French customs.^ If the marriage
terminated within the year and without the child there was, so
far as possible, a restitutio in integrum of the property. And the
child had to be a living child, heard to cry. Stair says : " The
reason why the child must be heard cry is to make certain its
lively ripeness, and not to leave it to the conjecture of the
witnesses" (i. 4, 19). All this has a very primitive look. It
strongly suggests an earlier period when, if no child was bom,
the marriage might be dissolved at will within a year. Or
perhaps it might be more correct to say that uniil the birth of
the child or the lapse of a year there was in the period before our
documents really no complete marriage, only a kind of trial-
marriage, or Probe-ehe, as German writers call it We know that
many early races had rules of a similar kind.
In this branch of the law France has been the more con-
servative of the two countries. Since 1881 we have introduced
the mle of separate property as between husband and wife,
whereas the community is still in full force in France. As
regards the protected rights of children, the modem French
law goes further than ours.
The customs varied a good deal as to the proportion of a
man's estate which he was free to dispose of by will, the quotiti
disponibk^ corresponding to our dead's part The proportion
* Pothicr, Traiie dc la Communaute, Art. Pr. 4 ; VioUet, p. 780.
( 8i )
which the testator cannot dispose of is called in France la riserve.
By the modem law if he has one child it is entitled to one-half
his estate ; two take two-thirds ; three or more, three-fourths. It
is singular that so great a restriction of the freedom of wiUmg
was not felt to conflict with the liberty of the individual, upon
which the Code Napoldon set such a high value. And we must
remember that in France the estate is a single mass. In Scotland
UgiHm extends only to movables, so that a cantankerous father
can defeat his children's claim by investing his money in land
or heritable securities. In France no juggling of this kind is
possible. In Scotland, however, fathers who contemplate this
kind of vengeance are apt to put it off till it is too late, or their
money is so placed in business that it would cripple them to
withdraw it Few would deny that the children's right to legiHm
is, in Scotland, a great protection.
Look for a moment at another part of this old family-law, the
right to courtesy. It may be reasonable that the husband of an
heiress should have for all the years during which he may survive
her the enjoyment of the rents of her lands. But we have to
justify by immemorial custom, rather than by reason, the quaint
condition that a child must have been bom which was heard tff
cry. On the death of a wife it may be of the greatest conse-
quence to the husband to prove that a child bom twenty years
ago, which only lived ten minutes, was an enfani brayani, heard
to " weep and bray." ^
Before legal antiquities were much studied it used to be
thought that the courtesy was a great peculiarity of this island.
Stair says, '* which, because it is peculiar unto these nations, is
said to be the courtesy of Scotland or England" (i. 4, 21). As
a matter of fact we find it, with minor variations as to the extent
of the right and the proof of live birth, in many French customs
and also in the old German law.^ It is no doubt a bit of very
ancient law which the Normans brought with them to England.
As I have said, these various rights which limit the freedom
' Sec Darlrith ▼. Campbdl^ 1702, MorUon, 31 13.
• VioUct, p. 808.
( 82 )
of testators form the nucleus of the French customs. They point,
not vaguely, to an earlier stage still, when the property belonged
to the family, not to the individual, and when wills were unknown.
Most of our customary law from this source has to do with the
family. But I may mention in a word one bit of old custom
connected with rural life. It was at one time not uncommon in
Scotland for the landlord to let a farm with a stock upon it upon
the terms that an equally valuable stock should be left at the end
of the lease. This was called steelbow. The same thing with
the same curious name is found in France and Germany. In
France it was called cheptel de fer.^ In Alsace it was staeierne
Gilt The point of the transaction, viz., that the risk was with the
lessee, is pithily put in an old German proverb: Eisern Vieh
stirbe nie. The cattle which does not die, because it must be
replaced, is called in German the iron cow — eiserne Kuh. In
France they called the contract cheptel de fer, and they spoke
too of hestiaux de fer. (See HatzfeldDarmesteter, s. v.) Our
steelbow is the same figure.
2. From the Roman Law both France and Scotland have
taken, speaking broadly, the law of obligations and contracts, the
law of possession and prescription, the law of servitudes, as well
as much else.
Look over Stair's titles on "Obligations Conventional," on
"Loan or Mutuum et Commodatum," on "Mandate," on
"Custody or Depositum," "Pledge or Pignus," on "Location
and Conduction," on " Sale or Emption and Vendition," or his
title on " Rights Real, where of Possession, and other Matters."
Why, one might give a course of lectures on the Roman law of
obligations out of Stair. We are in the full stream of the civil
law. He retains the Roman terminology. A few Scots cases are
sprinkled about his pages, as illustrations. But every important
proposition is supported by reference to the Digest or the Code,
just as it is in Pothier's " Treatise on Obligations," eighty years
later than Stair.
* Cheptfl is the same word as our chattel. It is derived from Low Latia
ca/italct or vivum cap tale, a stock or capital.
( 83 )
In Erskine's " Institutes," first published twelve years after
Pothier on *' Obligations/* the Scots cases are becoming much more
numerous. It is now less necessary to give the Roman authority.
Stilly the merest glance at Erskine's pages on this branch shows
us that he is giving the Roman law slightly Scoticised, as Pothier
gave it slightly Frenchified.
3. Feudalism. From feudalism both France and Scotland
took the law of land tenure and the order of succession to land.
It rather seems, however, that the preference of males to
females — droit de masctdinite — is older than the feudal age and
belongs to the immemorial customs of some of the Germanic
tribes.
The law of primogeniture, on the other hand, was the direct
outcome of the feudal system.^ Feudalism never got France
wholly into its grasp. In the south, where the barbarians never
got a very firm hold, there were consequently not many grants of
land to be made by the Frankish kings to their warriors. Most
of the land continued to be held on its original tenure. These
free lands were called alieux^ and the tenure was known as
allodiai. In the North most of the country was granted out to
the leading followers of the barbarian kings. These grants were
at first called benefices and were to revert at the death of the
grantee. But they developed into hereditary fiefs. Feudalism in
the pays coutumiers came to be regarded as the normal thing.
The proverb was nulU terre sans seigneur^ and many holders of
alUux who could not produce their title were compelled to
surrender their lands to the neighbouring seigneur and to accept
them back by a new feudal grant." In the South the presumption
was the other way, and the lord who claimed the superiority was
bound to show his title to it. The maxim was ///// seigneur sans
iitre.
Feudalism was swept away, root and branch, at the Revolution,
* Laferriere, ** Histoire de Droit,*' vol, iv., p. 405. Pollock and Maitland,
•* History of English Law," vol. ii., p. 261. Glasson, ** Histoire du Droit,"
▼ol. ii., p. 70; and the learned note on Le Droit ctAinesst^ in Brissaud,
p. 714.
G 2
( 84 )
and the French land law since then has presented a very different
aspect from ours.
4. The Canon Law. From the canon law both countries
took the law of the constitution of marriage, and of separation
from bed and board. Divorce a vinculo^ which the canon law
did not recognise, was introduced into Scotland at the Reforma-
tion. In France, except for a few years after the Revolution,
there was no divorce until 1884.
One of the chief peculiarities of Scots law is that it has
retained the clandestine and irregular marriages of the old canon
law of Catholic Europe. The learning of the mediaeval Church
as to sponsalia per verba de praesenti and per verba de future has
disappeared in Catholic France, but survives in Protestant Scot-
land. In France, as in most of Europe, the Declaration of the
Council of Trent that every valid marriage must be entered into
before the parish priest of one of the parties put an end to
irregular marriages.
Since the Revolution there are very few traces of the canon
law left in the law of France, but, for the reason I have stated, it
still enters to quite a considerable extent into our law.
I have, I hope, said enough to prove that the two systems of
law may be expected to show, as they do, many marks of common
origin. In some branches it would hardly be too much to say
that they are identical. No one can read Pothier's account of
servitudes and compare it with that of his contemporary Erskine
without seeing that the differences are inconsiderable. Both give
the Roman law with slight variations. In other branches the
differences are more profound. But I have tried to explain that
this is because the two systems, formerly much alike, have
developed upon different lines. May I be allowed to illustrate
this by a brief reference to the law of succession. The greatest
difference of all to the general mass of the people lies here. By
the French law the property of a deceased person, real and
persbnal, is regarded as forming a single mass and is equally
divided among his heirs of the same degree, whether these heirs
are male or female. By the Scots law the succession is first
( 85 )
divided into heritage and movables. In succession to the heritage
a son excludes daughters, and an elder son excludes a younger.
In succession to movables these prerogatives of sex and seniority
do not apply, and sons and daughters share equally. And, as to
immovables, the law of primogeniture is subject to the equitable
rule that the eldest son, who takes all the heritage, does not also
take a share of the movables with his brothers and sisters. But,
if he likes to collate, ue. to renounce his prerogative as heir in
heritage, the heritage and movables are treated as one mass and
there is an equal division, as in the case of every French intestate
succession. Here we seem to see a radical difference between
the two laws.
In Scotland there are two different orders of succession,
according as the property is of one kind or of another. In
France there is one order for every kind of property. But this
broad simplicity is quite modem. It contrasts strongly with the
intricacy and variety of the Rules which prevailed under the
ancUn regime.
The orators of ,the Revolution abound in diatribes against the
old law of succession. Barrbre calls it '' un melange bizarre de
lois barbares et disparates." Garran, another member of the
Convention, says the laws of succession are so unreasonable that
it would be a gain to exchange most of them for the laws of the
Esthonians who divide the estate of the deceased into five or six
lots and then let his friends and relations run races for them ! ^
The customs differed a good deal, but they were all very
subtle in distinguishing different kinds of property, each of which
had its particular heir. The most important divisions were those
of immovable property into immovables, which came to one by
succession to an ancestor, called propres ; and immovables,
acquired by purchase, called acquits ; analogous to our old dis-
tinction between heritage and conquest
But in consequence of the application of the Rule, paterna
paternisy tnaterna maUmisy it was important also to distinguish
' Cited by M. Gustave Axon, "Nouvelle Revue Historique," 1901, p. 444.
( 86 )
between immovables which the de cujus had got from the fathert
side, and those which he had got from the mother's side. Nor
was this by any means the end. By the Custom of Paris, to take
one example, there were twelve kinds of property, each of which
had its particular heir. They were — (i) movables; (a) im-
movables; (3) propres; (4) acquests ; (5) real propres ; (6)
fictitious propres; (7) propres nascent; (8) propres ancient; (9)
/r<?/r^ paternal ; (io)/r(t2^r^ maternal; (ii)/rt?/r^ lineal; (12)
propres without line.* Is it any wonder that we find writers and
orators saying that the French law of succession appeared to be
designed to divide a man's estate among the lawyers !
In Scotland as in England the distinction between movables
and immovables is fundamental It goes to the heart of the law.
And when France was a country of large estates in land as
Scotland is to-day the distinction was very important there also.
It is interesting for us to notice that the old French law uses
the same word as we do, ue. heritage, to denote real property.'
But from a very early time there was a great distinction between
the French and the Scots law as to succession to heritage, a
distinction which has had enormous effect upon the history of the
two countries. In Scotland the two cardinal rules of feudal
succession, viz. : (i) preference for males; and (2) primogeniture,
applied from the first to all heritage. So it did in Normandy ^
and in England. But in far the greater part of France this was
otherwise. It was only lands held upon a certain feudal tenure —
ierres nobles — which went to the eldest son. Other lands — terres
roturthes — did not descend noblement They were divided like
movables.
This deserves a few words of explanation. During the
Middle Age the great bulk of French territory became feudalised.
Most of the alleux were drawn into the feudal net. Disregarding
* See Pothier, " Introduction Generale aux Coutumes," No. 58, seq. ;
Report of Commissioners for Cociifying Laws of Lower Canada, vol. ii.,
p. no.
* Viollet, p. 617 ; and sec Code Civil, Art. 637.
' Brisbaud, p. 715, note 2.
( 87 )
die allodial lands which were left, we may say that all France was
parcelled out into seigneuries. The original grants had often been
of great extent, being made at a time when most of the land was
forest, or, at any rate, of slight value. The feudal barons had in
their turn made grants of parts of these wide domains to bring
them into cultivation and to produce rents for themselves. The
two great feudal tenures were : (i) Le fief ox terre-noblc, which is
analogous to our tenure of ward, and (2) La censive or terre
roturitre^ analogous to our feu-farm. The lands were said to be
held either en fief 01 en censive^ for which latter tenure other terms
were en villenage^ en roture, or en fief vilain. The fief was held
subject merely to the duty of miUtary service, and the old feudal
aids for ransom of the lord, knighting his son, and so forth*
When private wars ceased and the age of chivalry was passed — a
very happy thing for France as well as for Scotland — ^the holder
of a fief became to all intents and purposes an absolute owner.
His feudal lord did not need him to fight, and ransoms ceased to
be called for. The baron retained his estate, and got free, by the
natural course of events, from all the burdens which formerly
attached to it.
Now the rule of primogeniture had always applied to suc-
cession to a fief. This was only natural In the origin it was
important for the suzerain to see that his vassal was succeeded by
one who could render him the same military service. There
must be one man responsible for putting the force of men-at-
arms into the field. To divide this responsibility among the sons
of the vassal, who might be one here and another there, would be
to destroy the working of the system. Moreover, in the early
days it was important for everybody that the fief should remain
undivided. It was in many ways like a little state by itself, with
its courts, its military force, its church, its rude police, its pro-
vision for the poor, and so on. " (^ascuns barons est souvrains
dans sa baronnie,'' says Beaumanoir. To cut up the barony
would disturb the whole organisation of rural society. As these
reasons in time lost much of their force, from the growth of the
central power, they were replaced by another reason based on the
( 88 )
interest of the baronial family itself. Pride of rank and position
made it seem desirable that the fief or family estate should remain
intact To further this end the practice came in of making the
fief inalienable by means of an entail, or substitution fidHcom'
missaire. By the sixteenth century these had become very
common, especially in the case of the larger fiefs. But although
the law of primogeniture applied to the fiefs, it was not carried to
the extreme length. The coutumes varied, but in most of them
the eldest son took the family house — the chief manoir or chdieau
— ^and, in addition, two-thirds of the fief if there was another
child, or one-half if he had two or more brothers and sisters.
2. La censive. A great part of the land was, however, held
by sub-vassals of the feudal barons upon the non-noble tenure.
Here the obligation of the grantee was not to render military
service. It was to pay a cms or feu-duly, fixed sometimes in
money, sometimes in kind. The grantee was not called a vassal}
but a censitaire. The censive was hereditary like the fief, but so
long as the lord was sure of his cms it mattered nothing to him
that the land was divided among the children of his tenant And
in France generally the law was that these terres roturieres should
be divided like movables equally among the children, sons and
daughters alike. As many of the smaller fiefs were gradually cut
up by the shares of the younger children, and as the lands held
by the non-noble tenure were sub-divided at every generation, the
land in France soon got into a great many hands. This process
would have been much more rapid and complete than it was had
it not been for the prevalence of marriage contracts. Among the
noblesse and the haute bourgeoisie it became from the sixteenth
century onwards very usual to make a marriage contract which
should settle the family property. In France, as in Scotland,
this was made a powerful instrument for keeping the property in
the hands of the eldest son, and for restricting the claims of
younger children. The share of the younger children was dis-
charged or renounced for them in exchange for a provision which
might be very meagre. And in France another means of pre-
venting sub-division was much resorted to. Where it was felt
( 89 )
that the property would not stand division, ue. that the family
splendour would be too much diminished, younger sons and
daughters who had not married were persuaded to ''enter
religion." By becoming monks or nuns they incurred civil death
and took no share in the father's estate when it came to be
divided Social pressure and class-feeling were strong enough to
induce many to sacrifice their claims in this way in order to keep
up the dignity of the family.^
In spite, however, of all these checks, even before the Revo-
lution, many noble families had become landless, and a large
class of small owners had grown up. In Scotland, on the other
hand, the rigorous application of the rule of primogeniture to all
land, combined in the case of the larger properties with entails,
has facilitated the building up of great estates and has brought
about the absorption of almost all the small holdings.
I am not concerned to discuss the relative advantages of the
two* systems, but merely to indicate the historical causes which
have led to such different results. In this rapid comparison of
the two laws I have purposely left out of account the commercial
law. Most of our commercial law is of late introduction and
has come to us by way of England. Erskine's preface to his
" Institutes " is very instructive as to the history of the com-
mercial law. If we compare his work with that of Stair we see
how small a part of the law it formed in the seventeenth century.
The Right Hon. J. B. Balfour (Edinburgh),. (Lord Pre-
sident OF THE Court of Session) : My lords and gendemen,
I am sure that all of us must have listened with great pleasure,
as well as with no small amount of instruction, to the most
admirable address which my friend Professor Walton has just
read. Even those who have given much study to the law of
Scotland are apt to overlook some of the sources to which he
has referred. We are familiar with the feudal law and Roman
law, but I do not think that it has been quite sufficiently recognised
' See an article, " Etude 3ur les Ibis successorales de la Revolution," by
M. Gustave Aron, ** Nouv. Rev. Hist.," 1901, p. 454.
( 90 )
that the other two sources with which he has dealt have con*
tributed so largely to the law which we now administer. Every
one present must have felt that an important contribution to
legal history has been made by Professor Walton's excellent
Paper.
The Lord Advocate (Right Hon. A. Graham Murray,
K.C., M.P.): My lords and gentlemen, it has been a source
of great pleasure to see Mr. Walton back amongst us again
after a somewhat long separation, and I am very glad to
associate myself with the words which have fallen from the
Lord President as to the intrinsic value of this Paper. We
are accustomed in Scotland to borrowing a good deal from
France. After all, it dates back to the day when we did not
agree very well with our somewhat turbulent English neigh-
bours (laughter), and everywhere in Scotland you find traces of
our ancient connection with France in very many of the words
which we use to this day, and also in our taste for claret, which,
even at this moment, in London, they have never properly
learned. (Laughter.) May I, at the same time, utter one pro-
test against a word that fell from Mr. Walton. He may be able
to justify it perhaps from a scientific point of view, but I don*t
think he can justify it in the way that it would be commonly
understood, when he referred to our system of law as a system of
case law. Now, that is what I think, in contradistinction to
England, it certainly is not We have never been the slave of
precedent, as the English law has been, and I would almost risk
appealing to the testimony of the Lord Chief Justice, with whom
I have been often associated during the last twenty years in the
House of Lords, whether or not the natural tendency of the
Scotch lawyer is to argue rather on principle than on precedent ;
and, while I may protest against Mr. Walton, I would venture to
say that the institutional writers in Scotland are treated as part
and parcel of our law in a way that I think they are not treated
in almost any other system. With that slight criticism I can only
again express my thanks to Mr. Walton for the peculiarly local
( 91 )
colour and interest which he has lent to this meeting in the
reading of his Paper.
The SoLiciTOR^ENERAL for Scotland (J. Scott Dickson,
Esq., K.C., M.P.) : My lords and gentlemen, I have little to
add to what has been said about this paper, but I would like
to say that in the ordinary administration of our Scots law I
am afraid we are rapidly losing that love of principle that the
Lord-Advocate has referred to, and becoming more and more
case lawyers ; and, as far as that is concerned, I think we are
able to borrow with great advantage to ourselves illumination
from English authorities and from American authorities, in whom
we find much greater variety. I do not know whether it is
from the much more complex civilisation of the Western
Republic than our own, but I think we find more variety in
United States cases, and illustrating points which come very
rarely before our Scotch Courts, so that we often derive great
assistance from cases decided in the United States Courts.
I think this is also true, that when a question of principle comes
to be argued there is no system of jurisprudence that we have
more confidence in appealing to and more frequently do appeal
to than what is embodied in the writings of the French jurists,
and that is notable in connection with what Mr. Walton has
already referred to, the somewhat scanty method in which
our own institutional writers treated the law of obligation or
commercial law. I take it that those who are engaged in
administering the law from the Bench will agree with me that
there is no foreign jurist who is more referred to than Pothier,
especially with regard to the law of obligations. I confess
that although I have been practically engaged ail my adult life in
legal work I have not, till this paper was read, understood so
fully the varied sources from which our Scots law was gathered,
and especially how much knowledge came to us through the
medium of French law. I am sure that the paper is one which,
even to those who have not the minute experience of Scots
law which wc in Scotland ought to have, will commend itself
( 9^ )
to all, and will find a very fitting place in the records of this
Association.
The President : Gentlemen, we must break up now, and as
I do not know whether I shall have the pleasure of seeing
Professor Walton again, I should like to propose a hearty vote of
thanks to him for this paper. I do not know that anybody
would say at first sight that it savoured much of international law,
but it came to me like a fresh breeze from the moors of Scotland
mingled with the gales of the Atlantic, and to have one's
mind taken back to the source of Scotch law was perfectly
delightful I enjoyed the paper greatly, and I learned a great
deal firom it I wbh to say a word on what has been
already said as to the errors and mistakes in many of our
English judgments from relying upon cases. I think many
of the old judgments forty or fifty years ago, in which
there was nothing but citation firom a string of cases, and an
attempt to make them all agree resulted in the most barren and
futile judgments possible. I have often been struck, as I said
this morning before I knew that Mr. Walton was going to refer
to the matter, how much . Scotch law represents the embodi*
ment of principle. If Scotch judges have been led astray by
some vices of the English judges, I think they have managed
to keep clear of this one, and I am only too glad that the
Lord-President and the Lord- Advocate and the Solicitor-General
should have been here to enjoy this paper as much as we' English
lawyers have done. I have had the great pleasure in days gone
by of being associated with the Lord-President and the Lord-
Advocate and the Solicitor-General, and I have had experience
of Scotch appeals and the strict and accurate terminology of
Scotch law. I was junior to Mr. Horace Davey — the present
Lord Davey — in a case which referred to an expanse of water
somewhere in Scotland, and Mr. Davey was describing the
locality. He pronounced the word " loch " in a variety of ways,
and after wriggling about in his seat for a long time, Lord Black-
burn said : " Mr. Davey, you may call it a pond or a lake, but
( 93 )
don't call it a loch because you cannot say it.'' That taught me
the lesson that terminology was a most important thing in Scots
law. I met an American gentleman yesterday, and I am glad to
see him in the room to-day, and he told me that he did not care
about anything in this country that was not a thousand years old.
I am sure that he has enjoyed this paper as much as I have,
because it has gone back much more than a thousand years, and
I doubt not that it has been a matter of great gratification to him
to have listened to it I propose a vote of thanks to Mr. Walton
for his Paper.
The vote was cordially adopted, and the Conference adjourned
at I.4S P.M.
The members of the Conference were subsequently the guests
of the Lord Provost and Corporation of Glasgow at luncheon in
the Municipal Buildings.
( 94 )
WEDNESDAY, 21ST AUGUST, 1901.
The Conference re-assembled at 10 a.m., the President taking
the Chair, and the Minutes of the previous day's Conference
were read by Mr. G. G. PHILLIMORE, Hon. Gen. Secretary,
and confirmed.
International Rules of Marine Insurance.
At the invitation of the President, the Hon. Mr. Justice
GORELL BARNES, a Vice-President for England, took the
Chair, and the Conference took up the further discussion of the
Report of the Committee on the proposed International Rules
of Marine Insurance presented at the Rouen Conference.
Mr. T. G. Carver, K,C., London, read the following
Paper : —
INTERNATIONAL MARINE INSURANCE RULES,
The scheme on this subject was not discussed at the Rouen
Conference last year, as it was felt that it had not been sufficiently
long before those members who had not been engaged in pre-
paring it. It was therefore left over, to be the first business at
the Conference then proposed for this year.
The object in view has been to find a mode of bridging over
the differences which exist in marine insurance law in the dififerent
States — a method by which a policy of insurance may have the
same legal effect whether it is made in Belgium, France, Germany,
the United States, or in England. And the proposal is to have a
body of Rules, covering those portions of the law on which the
principal divergencies occur, which may be adopted as the
fundamental law of the policy by express incorporation in it
( 95 )
At Bufialo, where the scheme was first brought forward in
1899, a number of resolutions were come to, defining the principles
which should underlie such Rules ; and a draft of proposed Rules
was submitted to a Joint Committee of American and English
gentlemen. It was that draft, altered in some important respects,
and settled by the two branches of the Committee in conference,
which was presented to the Conference at Rouen, ai&d which
now comes before this Conference in the same shape.
The Rules are divided into four groups : —
1. Total loss.
2. Partial loss of ship ; deductions.
3. Effect of negligence, unseaworthiness, etc
4. Double insurances.
I do not propose now to offer any remarks upon any of them
except the third. Those who were present at Buffalo or Rouen,
or who have read the Reports of the proceedings, will know how
and why the Rules are proposed ; and, though ]>oints of detail will
no doubt come in question, I think that on the principles
adopted in Groups I., II., and IV. little or no criticism has been
disclosed.
On tlie other hand, as to the Rules of the third group, which
relate to the effect on the insurer's obligations of negligence of
the assured, or his servants or agents, and of unseaworthiness of
the ship, marked diversities of view have been expressed as to the
right principles to be adopted It is upon the proposals in this
group that the criticisms of the Belgian Committee, and of
Mr. R. Ulrich, of Berlin, which are in the hands of members,
have been mainly directed; and it is upon these mainly that
discussion is likely to arise to-day. I will therefore endeavour to
put before the Conference somewhat more fully how that matter
stands.
First, as to seaworthiness of the ship. The obligation, in certain
classes of policies, to have the ship in which the adventure is to
take place fit for the adventure, is a marked feature of English
( 96 )
and American insurance law. Insurances in those countries dnrer
aU losses by the perils insured against during the vojrage or
period insured, unless they have been wilfully brought about hj
the assured; but the condition is imposed that the ship most
have been fit for the voyage at its commencement If she was
not fit, the insurance has no legal validity, and a loss is uncovered,
however it may have happened. In France, on the contrary, and
in those countries which have followed the French system, there
is no special obligation or condition as to the fitness of the ship.
But the insurer is not liable for losses caused by the act or
default of the assured or his agents ; nor, as I understand, for a
loss which takes place owing to some vic^ propre in the thing
insured. So that the assured does not recover where the loss has
happened in consequence of unfitness of the ship, if that unfitness
lay in some proper vice (inherent defect) of the ship, or was
caused by a default (want of reasonable skill and care) of the
assured or his agents.
In Germany the new Code (s. 82 r) exempts the insurer from
responsibility for " damage occasioned in consequence of the
vessel having been sent to sea in an unseaworthy condition, or
improperly fitted out or manned, or without the necessary
papers '' ; also from '' damage arising out of any default of the
assured."
Thus it will be seen that while in England or America
seaworthiness is a condition of any obligation of the insurer, on the
Continent of Europe the insurer is qnly relieved from losses
caused by the unseaworthiness.
Upon that difference I think all who have expressed them-
selves in these Conferences have t 
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