Page images
PDF
EPUB

common law; it may order a survey. Admiralty courts may exercise equitable as well as legal jurisdiction and may often give equitable as well as legal relief. Many equitable subjects, however, do not come within its purview. It does not decree specific performance of contracts, nor enforce mortgages or trusts, nor entertain actions of account. Its jurisdiction and decrees are appropriate to the subject-matter; it dispenses justice, rather than technical equity, unhampered by a jury.

It may be asked what faults are to be found in the Admiralty law. The limitation of the right of appeal permits long-continued conflict on points of law between the courts in different circuits, and the doctrine that Congress cannot affect the extent of Admiralty jurisdiction is an evil which has only been remedied in part. There are also criticisms in some quarters of the practical operation of the Admiralty courts, of the cost involved, and of some of the alleged inconsistencies of the law, and suggestions have been made as to universal legislation concerning salvage, shipowners' liability, and some other subjects.

Defects.

Modern

It may safely be asserted that in general the administration of the Admiralty law furnishes no ground for complaint; that speedy justice is satisfactorily administered; that every material question of fact and law is carefully Admiralty. considered; and that it would be difficult to conceive or carry out a system which would more completely fulfil the requirements of maritime commerce, or more perfectly effectuate the purpose of Admiralty, - that is, to promote substantial justice.

The history of Admiralty in England is like the ebb and flow of the tides which have served to confine its jurisdiction. As the courtiers of King Canute attempted to use his royal word to stay the advances of the sea, so the common-law lawyers, through Lord Coke, sought by the writ of prohibition to prevent the operation of the laws of the sea. So kings and parliaments emulated the example of Xerxes, who, when the force of the waves swept away his bridge across the Darda

nelles, "inflicted three hundred lashes on the rebellious sea and cast chains of iron across it."

But at last even the power of kings and law courts were as ineffectual to hinder the progress of the majesty and strength of the Admiralty as was Dame Partington when, with her mop and pattens, she sought to stay the advance of the Atlantic Ocean in the great storm of Sidmouth.1

In England, a course of legislation has removed the barriers interposed by the common-law courts and has built up a new system of Admiralty law adapted to the exigencies of modern maritime commercial undertakings.

In the United States, the genius of Story, of Bradley, of Brown, and other great jurists, has served not so much to create a system as to discover and reason out the Admiralty law as shown by immemorial usage, by the principles of the civil law, and by the provisions of maritime nations for securing substantial justice.

The Admiralty is an inspiration borne like the clouds upon the breezes of the ages from Oleron and Rhodes; a goddess rising from the sea, trained to its smiling moods, its stormy passions, its rocks and currents. As the Greeks reasoned that the perfect statue was already in the block of marble, and it only required the skill of the sculptor to bring it out, so the judicial interpretation and construction of ancient customs has disclosed the perfect system of to-day until, like the Galatea of Pygmalion, the Admiralty lawyers have learned to love the creation which the Admiralty courts have discovered, and into which they have breathed the new breath of the life of the Nineteenth Century.

1 Life and Times of Sydney Smith, p. 298.

XVIII

INTERNATIONAL LAW

1701-1901

BY THEODORE SALISBURY WOOLSEY, M.A., LL.B.

INTERNATIONAL Law, defined as the sum of those rules which govern the relations of sovereign States, is founded upon reason and usage, and depends for its growth upon such evidences of reasonableness, of use and of acceptance, as the clashing desires and necessities of States have brought to light. It can neither grow nor, in fact, have The colonial an independent existence, except as it is called period. upon to satisfy a certain want, of intercourse to be defined. There must be States in relation with one another, to create this want. But until the independent existence of the American Republic was established, there were no sovereign States in the proper sense of the term upon this continent. There were colonies with powers of legislation, but they were destitute of the attributes of external sovereignty. It is necessary to make this clear in order to explain how completely the topic of the present chapter differs from the other topics treated of in this volume. The law of real property, of contracts, of evidence or pleading, may trace its growth throughout the colonial era to American agencies, while the rules of International Law could not be affected by local conditions and demands.

Our treatment of the subject, then, properly begins with 1776. And yet the seventy-five years elapsing between the founding of Yale and American Independence were not without a certain acquaintance with the rules of war, the nature

and negotiation of treaties, the rights of embassy. There was practical diplomacy in the dealings of colonial agents with their home government, as well as in their negotiations with the French authorities to the North and with one another. In this way Benjamin Franklin, for instance, got his training. That such practical acquaintance in the colonies with certain features of International Law had effect upon that law's growth is not to be believed; but that it paved the way for the subsequent development of the law is entirely possible.

A few references to such application of International Law here may therefore be of value. And yet how irreg and anomalous this application was!

A Governor of Massachusetts, Dudley, conferred with various sachems of Maine tribes, in 1703, and the result is called The Treaty of Casco.

Agents were sent by Massachusetts to Quebec in 1705 to arrange an exchange of prisoners and propose a treaty of neutrality. This proposition was acceptable to Vaudreuil if New York and the other English provinces could be included in it, and if, also, the English could be debarred from fishing in the Gulf of St. Lawrence. But the latter condition was beyond the powers of the Commissioners.

In 1709, when arranging for joint action of the provinces. against the French, the Massachusetts authorities laid an embargo on shipping.

Another Massachusetts Governor, in 1725, made a treaty of peace, called Dummer's Treaty, with various Indian tribes.1

Several Governors-General of Nova Scotia made or renewed treaties of peace with Indians, which were said to have been ratified by the Chiefs on the one hand, by the Council on the other.

Sir William Johnson, in 1768, negotiated a treaty with the Six Nations for settling the boundary between them and

1 Massachusetts Historical Collections, XXXV. 364; New Hampshire Historical Society Collection, I. 124, 129, 131; Penhallow's Indian Wars, p. 119.

the British colonies. William Franklin was present at this conference in the interests of New Jersey, and wrote of the value of the arrangement "if the Boundary is speedily ratified." Here would seem to be examples of the exercise of sovereign powers by the colonies, and the recognition of the same as residing in the Indian tribes.

66

But when these treaties are examined they appear to be unilateral; they are far from possessing that reciprocal character which the dealings of sovereigns presuppose. The Indians agree to do or refrain from doing certain things, influenced by fear or bounty. The colony itself makes no stipulations. Negotiation is in the hands of the Governor, not as the agent of the colony, but as the representative of his sovereign. Thus in Dummer's Treaty the text runs, "And we do hereby promise and engage with the Honorable William Dummer, Esq're, as the Lieutenant Governor and Commander in Chief of his Majesty's province of the Massachusetts Bay." Sometimes ratification is added by council or by sovereign, sometimes apparently not. The natural conclusion is that such treaties were made by the Governors either as military officers in command, or as the personal representatives of a sovereign across the sea. In both capacities much latitude was necessarily given and taken, by reason. of distance from the source of sovereignty, and from the necessities of the case.

With the rules of war the colonies came into more legitimate contact. Their ships took prizes. Their General arranged the capitulation of Louisburg, in conference with the British Admiral. Prisoners were exchanged; truces were made; the flag of truce respected. The pages of Parkman, in his graphic picture of a Half Century of Conflict, are full of such incidents. But when we trace back the powers of the Governor to their source, it is always as his sovereign's representative that he acts. And when Acadia was conquered, its people were told to swear allegiance to the British Crown.

1 New Jersey Archives, 1st Series, X. 95.

« PreviousContinue »