Blackwood's Edinburgh Magazine, Vol. 93, No. 569, March, 1863

by Various

Hitherto, we think, there has been a great, or rather an utter, want in this country of any good Institute of the civil law, that could safely and efficiently guide the student in his early labours, or assist him in his more advanced progress. The elegant and admirable summary given by Gibbon in his History, cannot, without much comment and expansion, be made a book of instruction; but we feel assured that this want which we have noticed is supplied by the work now before us. Lord Mackenzie’s book, though bearing the popular and modest title of ‘Studies in Roman Law,’ is truly an Institute, or didactic Exposition, of that system, where its elements and leading principles are laid down and illustrated as fully as a student could require, while a reference is made at every step to texts and authorities, which will enable him to extend and confirm his views by a full examination of original sources. The enunciation of the legal principles is everywhere given with great brevity, but with remarkable clearness and precision, and in a manner equally pleasing and unpretending. The comparison which is at the same time presented between the Roman system and the laws of France, England, and Scotland, add greatly to the attraction as well as to the usefulness of the work.

At the risk of appearing to resemble the man in Hierocles who carried a brick about with him as a sample of his house, we shall here offer a few extracts in illustration of the character of the work and its style of execution, premising that the passages we have selected have reference to topics more of a popular than of a scientific kind.

The interest attaching at present to questions of international law, and to the rights of belligerents, will recommend the passages on those subjects which here follow:—

“If all the states of Europe were to concur in framing a general code of international law, which should be binding on them all, and form themselves into a confederacy to enforce it, this might be regarded as a positive law of nations for Europe. But nothing of this sort has ever been attempted. The nearest approach to such international legislation is the general regulations introduced into treaties by the great Powers of Europe, which are binding on the contracting parties, but not on the states that decline to accede to them.

“To settle disputes between nations on the principles of justice, rather than leave them to the blind arbitrament of war, is the primary object of the European law of nations. When war has broken out, it regulates the rights and duties of belligerents, and the conduct of neutrals.

“As the weak side of the law of nations is the want of a supreme executive power to enforce it, small states are exposed to great disadvantages in disputes with their more powerful neighbours. But the modern political system of Europe for the preservation of the balance of power forms a strong barrier against unjust aggression. When the power of one great state can be balanced, or kept in check, by that of another, the independence of smaller states is in some degree secured against both; for neither of the great Powers will allow its rival to add to its strength by the conquest of the smaller states....

“By the declaration of 16th April 1856, the Congress of Paris, held after the Crimean war, adopted four principles of international law. 1. Privateering is and remains abolished. 2. The neutral flag covers the enemy’s merchandise, with the exception of contraband of war. 3. Neutral merchandise, with the exception of contraband of war, is not liable to seizure under an enemy’s flag. 4. Blockades, in order to be binding, must be effective; that is to say, must be maintained by a force really sufficient to prevent approach to an enemy’s coast. This declaration was signed by the plenipotentiaries of the seven Powers who attended the Congress, and it was accepted by nearly all the states of the world. But the United States of America, Spain, and Mexico, refused their assent, because they objected to the abolition of privateering. So far as these Powers are concerned, therefore, privateering—that is, the employment of private cruisers commissioned by the state—still remains a perfectly legitimate mode of warfare. Britain and the other Powers who acceded to the declaration, are bound to discontinue the practice in hostilities with each other. But if we should have the misfortune to go to war with the United States, we should not be bound to abstain from privateering, unless the United States should enter into a similar and corresponding engagement with us....

“The freedom of commerce, to which neutral states are entitled, does not extend to contraband of war; but, according to the principles laid down in the declaration of Paris of April 1856, it may now be said that ‘a ship at sea is part of the soil of the country to which it belongs,’ with the single exception implied in the right of a belligerent to search for contraband. What constitutes contraband is not precisely settled; the limits are not absolutely the same for all Powers, and variations occur in particular treaties; but, speaking generally, belligerents have a right to treat as contraband, and to capture, all munitions of war and other articles directly auxiliary to warlike purposes. The neutral carrier engages in a contraband trade when he conveys official despatches from a person in the service of the enemy to the enemy’s possessions; but it has been decided that it is not illegal for a neutral vessel to carry despatches from the enemy to his Ambassador or his Consul in a neutral country. The penalty of carrying contraband is confiscation of the illegal cargo, and sometimes condemnation of the ship itself.

“The affair of the Trent, West Indian mail, gave rise to an important question of maritime law deeply affecting the rights of neutrals. In November 1861, Captain Wilkes, of the American war-steamer San Jacinto, after firing a roundshot and a shell, boarded the English mail-packet Trent, in Old Bahama Channel, on its passage from Havannah to Southampton, and carried off by force Messrs Mason and Slidell, two Commissioners from the Confederate States, who were taken on board as passengers bound for England. The Commissioners were conveyed to America, and committed to prison; but, after a formal requisition by Britain, declaring the capture to be illegal, they were surrendered by the Federal Government.

“The seizure of the Commissioners was attempted to be justified by American writers on two grounds: 1st, That the Commissioners were contraband of war, and that in carrying them the Trent was liable to condemnation for having committed a breach of neutrality; 2d, That, at all events, Captain Wilkes was entitled to seize the Commissioners either as enemies or rebels. Both these propositions are plainly untenable....