Page:The Green Bag (1889–1914), Volume 17.pdf/190

 EDITORIAL DEPARTMENT attention to the fact that its system of evidence has stood the test of time and experience better than any other department of the Eng lish law. The substantive law itself has changed greatly in the past two centuries and is destined to change even more in the years that are to come. Methods of pleading have been entirely changed until the time-honored system of common-law pleading has been abolished in England and all her colonies and remains in force in not more than five States of the Union. But in two hundred years there has been but one important or fundamental change made in the law of evidence, and that has consisted in removing disabilities on the competency of witnesses, in order that even the doubtful evidence of interested persons might not be kept from the jury."

'75

army they could be lawfully seized. But the location of the Russian fleets, particularly the one in the Red Sea, was such as to make it impossible for them to say with any degree of assurance that the goods were not going to the points to which they were billed." Since the article was written a higher court at St. Petersburg has largely corrected the judgments of the prize court at Vladivostok.

INTERNATIONAL LAW (Destruction of Prize) "THE right of a belligerent to destroy a captured prize" is considered in the February Number of the Harvard Law Review (V. 18, p. 284), by Francis J. Swayze. After a careful examination of the authorities he concludes: "An examination of the authorities shows that although the right to destroy a neutral ship captured as a prize is perhaps not ex INTERNATIONAL LAW (Contraband. Food Stuffs) pressly denied, it is not established." "It THE right to treat food stuffs as contraband seems that Calvo is right in saying that the is discussed by Edwin Maxey in the Law publicists establish a distinction with reference Quarterly Review for January, (V. 21. p. 35) to the character of the vessel, and make the under the title of "Russian Raids on Neutral legality or illegality of the act of destruction Commerce," which the author concludes as depend on the hostile character or the neu follows:— trality of the property destroyed." "We discover a definite tendency toward an "The weight of authority is in favor of the increase of neutral rights. This is due partly view that neutral ships ought not to be de to the increased ratio of neutral to belligerent stroyed before condemnation. This also ac trade and partly to a general desire to ame cords with the modern tendency $o respect liorate the harsh conditions of war which has private property at sea as it is respected on manifested itself in many directions and par land, and with reason. The right of de ticularly as regards non-combatants. So that struction rests upon the theory that the former in the present stage of development of inter owner loses nothing; since the property de national law the weight of authority is clearly stroyed is subject to condemnation, he has against considering food-stuffs as contraband nothing to gain by proceedings before a prize of war; and it is doubtful if neutrals will ever court; this is so only in the case of a lawful permit the opposite rule to be revived—their prize. In the case of an enemy's vessel, the opposition to it on the ground of both senti hostile character of the vessel makes it lawful ment and interest is too strong. If this con prize, and this is a fact readily determined, clusion is correct, the Russian seizures of about which there can be little dispute. A neutral ships laden with food-stuffs, and such neutral vessel, on the other hand, is lawful was the cargo of the most of those seized, billed prize only under exceptional circumstances, to neutral ports such as Manilla or Hong Kong and it requires a somewhat nice judgment to constitute an extreme stretch of the power of determine whether or not those circumstances a belligerent, which cannot be said to be exist,—a judgment which, on general princi justified by international law. Were the goods ples, ought not to be entrusted to her captor. billed to the commissary department of the Civilization and reason plead in favor of the Japanese army their seizure would be war neutral, and considerations of expediency on ranted, or if billed to any one else but captured the part of belligerent governments are on the under circumstances which made it clear that same side. The risk of unnecessary com they were destined for use by the Japanese plications and even of war is so great, and the