on the outbreak of the war does not affect the contract, even if he is interned.) But we are concerned with contracts, one party to which is voluntarily resident or carrying on business in enemy territory, whether an enemy by nationality or not. Professor Garner leaves us with the impression, unless we misinterpret him, that as regards these pre-war contracts-those which cross the line of war-in his view "the general rule is that war does not ipso facto terminate such contracts, but merely suspends the rights of the parties—that is to say, they cannot sue on them until the return of peace." It is true that this view was current upon the outbreak of the recent war, very largely as the result of certain obiter dicta in Janson's Case,' but the experience of the war has been, at any rate in England, that although suspension may be theoretically a possible alternative, the Courts have not succeeded in finding many contracts the operation of which they are prepared to suspend. Probably the shareholder's contract of membership of his company is one instance of suspension; and a policy of life insurance is another.' But the general rule, if there is one, is in favour of dissolution, abrogation, discharge, as the result of the outbreak of war, with this addendum that in the case of contracts which are "the concomitants of the rights of property" (e.g. partnership), while the contract itself (e.g. the relation of partners) is abrogated, the property (e.g. the enemy partner's share in the assets) is preserved; for, as Viscount Finlay, L.C., said in January 1918, "it is not the law of this country that the property of enemy subjects is confiscated"; or, to be more up-to-date, it was not the law until the Treaty of Versailles and the ensuing Treaty of Peace Act, 1919, made it so. 1 [1902] A.C. at p. 493; explained by Lord Dunedin in Ertel Bieber & Co. v. Rio Tinto Co., [1918] A.C. at p. 269. Robson v. Premier Oil and Pipe Line Co., [1915] 2 Ch. 124 (C.A.); Daimler Co.'s case [1916], 2 A.C. at pp. 330 and 352. 8 Seligman v. Eagle Insurance Co., [1917] I Ch. 519. In this case the plaintiff, a surety, did not become, as Professor Garner states (op. cit., vol. i, p. 245), an alien enemy; it was the "life" insured who became an alien enemy, and he was not a party to the action, nor can we understand Professor Garner's statement that in Elders & Fyffes, Ltd. v. Hamburg Amerikanische Packetfahrt A.G., [1918] 34 T.L.R. 275, "a contract between an English firm (a company carrying on business in England though controlled from America) and a German company registered in England was only suspended for the period of the war.” The German company was incorporated in Germany, not in England, and the contract was declared by the Court of Appeal to have been dissolved by the outbreak of war and not merely suspended. • Hugh Stevenson & Sons v. A.-G. für Cartonnagen Industrie, [1918] A.C. at p. The French attitude appears to have been determined not upon general principles, but by the issue of official decrees, the net effect of which Professor Garner tells us was that those pre-war contracts, the execution of which would benefit the enemy, were suspended, but those, the execution of which would not have that effect, "remained unaffected, and their stipulations might lawfully be performed." So partnerships were "merely suspended" (and not as in England abrogated) "for the period of the war and not abrogated if the house was situated in France and the partnership was organized in pursuance of French law. Enemy partners . . . were incapacitated from exercising their rights." * The German attitude was, at any rate at first, even more lenient than the French. The German law in force upon the outbreak of war did not prevent the making or performance of contracts with enemies across the line of war, and "none of the early German ordinances relating to trade with the enemy, the right of access of enemy aliens to the Courts, or the sequestration of enemy property contained any prohibitions in respect to the making or performance of contracts. "" 3 But an ordinance of December 1916 empowered the Chancellor, by way of reprisal, to declare upon the petition of a German party the annulment of most commercial contracts entered into with enemy subjects. As Professor Garner elsewhere points out, the benefit likely to accrue to Germany from intercourse with her enemies outweighed the possible injury—a fact which may explain the lenience or laxity of the German law towards trade and contracts with enemies." Some other Recent Publications.-M. J. de Louter's work, Droit International Public Positif, has recently been translated by him into French at the request of the Carnegie Endowment for International Peace (of which the Division of International Law is under the direction of Mr. James Brown Scott). It presents from the point of view of a partisan convaincu de l'école positiviste an account of international law as it stood in 1914, though since then, bouleversé et à peu près détruit, as he remarks in his preface. The Carnegie Endowment has laid those interested in international law under yet another debt by thus rendering accessible to a wider circle 1 Op. cit., vol. i, pp. 254-5. Op. cit., vol. i, p. 257. Op. cit., vol. i, p. 260. 5 In two volumes, published by the Oxford University Press. There is a table of contents, but surely an index would have greatly increased the value of the work. the work, written in Dutch in 1910, of a fellow-countryman of Grotius and Bynkershoek. Two other volumes 1 recently published by the Carnegie Endowment are valuable in estimating the position of international law as it stood before the recent bouleversement, Proceedings of the Hague Conference of 1899, and the first of three volumes of the Proceedings of the Hague Conference of 1907. It is useless to build anew without understanding what has gone before, and if it is true, as M. de Louter hopes, that après une maladie aiguè et une défaillance fatale international law est prêt à se relever pour recommencer une carrière honorable et utile it is only by a close study of the mistakes and illusions of the past that this can be done. Has international law une Not if it merely follows the The Future.-But will it be done? carrière honorable et utile in front of it? pre-war line of development. Not unless there is a real change of method on the part of international publicists, and a real change of heart on the part of peoples and their servants, the statesmen and diplomatists, the sailors and soldiers. How many cases are there on record of a consensus of opinion of prominent international publicists throughout the civilized world upon the rights and wrongs of some important international incident? Take the British operations against Denmark in 1807. Were they or were they not justifiable? What degree of international unanimity exists on this question? British writers say Yes, on the ground of self-preservation; many Continental writers say No, and M. de Louter regards the British operations as violence abominable. International lawyers must become more international. Patriotism is not enough; witness the German apologia for the invasion of Belgium. Again, when public servants attend an international conference, such as the Hague Conferences, it is hopeless to expect any real progress if the delegates are instructed, as has happened too often in the past, to adopt a purely national attitude, only to concede what their own countries can afford to treat as immaterial, and not to consent to anything which may in any way be detrimental to their material interests, however beneficial to the world at large. And, above all, while we may yet be far removed from a true international sanction we have in the League of Nations, if we want it, the opportunity of creating a watchful, active, living, international conscience, which can promptly investigate allegations of breaches of international law, whether in peace or 1 In English, also published by the Oxford University Press. in war, and promptly condemn when those allegations are found to be true. Hall, in the preface quoted at the beginning of these remarks, said that "if the next war be unscrupulously waged it also will be followed by a reaction towards increased stringency of law.” If the unscrupulous methods of the recent war have, as Anatole France said," made war a monster too ugly to live," Hall's prophecy may be more than fulfilled. 1 THE CRIMINAL LAW AND THE CRIMINAL INSANE. [Contributed by DR. LETITIA FAIRFIELD.] THE year 1922 will be memorable in the annals of criminology for a murder trial of exceptional interest both on account of the medico-legal problems involved and for the permanent mark it will leave on the criminal law. The sordid and brutal murder perpetrated by Ronald True has not only led to a fierce and prolonged controversy among high authorities in law and medicine over that individual's fate, but it produced the most important pronouncement on the law as regards crime and insanity made by the Court of Criminal Appeal since that body came into existence, and further, led to the appointment of a Committee by the Lord Chancellor to reconsider the whole question of the Criminal Responsibility of the Insane. That such reconsideration is urgently needed was apparent from the confusions and misconceptions which revealed themselves at every stage of the True case. It is a remarkable fact, however, that in the trial which has revived the old controversy over legal tests of responsibility, the validity of the said tests from the medical standpoint, which is usually the point on which criticism is focussed, was not in issue at all. Inadequate and fallacious as the Macnaghten tests may be, it is clear that as put to the jury by Mr. Justice McCardie, they were broad enough to cover the case of Ronald True. Four questions were left to the jury: 1. Did the prisoner destroy the life of Gertrude Yates? 2. Did he at the time suffer from mental disease? 3. Did he at the time suffer from such defect of reason, from disease of the mind, that he did not know the physical nature and quality of the act ? If he did not, he would be guilty but insane. 4. Did he know that what he was doing was morally wrong according to the standard of his fellow citizens? If he did not, there again the prisoner would be guilty but insane. |