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CAN DOMESTIC LAW GIVE RELIEF?
The assimilation of private property at sea to private property on land we have seen would mean that the state to which the captured vessels belonged should indemnify the ship and cargo owners for their loss.
Thus the humanizing of war as regards private property is not only a matter of international law; it is also, and indeed mainly, a question of domestic regulation. Such indemnification has become a principle in war upon land, and it may become a question of the future how, by domestic regulation, to deal with captures by the enemy of property at sea. In the case of naval war, however, the circumstances are not exactly the same. After the outbreak of war, every shipowner and shipper belonging to a belligerent state know the risk they incur in sending ships or goods across sea. They have, moreover, the option of keeping their ship or cargo in port, or of paying war rates of insurance, or again, the shipper has the option of sending his goods under the protection of a neutral flag. If they expose their ship or cargo to the risks of capture, it is that they have calculated the chances of escape, and have chosen to run the risks. To indemnify them for losses incurred might be to relieve the shipowner and shipper from the consequences of their want of foresight and caution.
Still, if their property is captured and confiscated, a proper record of the confiscation is kept, the ship and cargo are valued or sold, and the state whose flag the ship carried can indemnify the owner, and thus here again spread over the community a loss suffered by the individual citizen.
It is conceivable that means may some day be devised of indemnifying for capture at sea on a reduced valuation, combined with a licence to put to sea, but on these matters no experiments seem yet to have been made by which we can judge.
IMMUNITY FROM MOTIVES OF EXPEDIENCY,
States, from motives of expediency, may agree not to capture the property of private citizens during a particular war with each other, as in the case of Italy and Austria in 1866, or they may by treaty provide for a similar immunity of their respective private citizens in the event of a future war between them. The United States have made it an article of their policy to insist upon the adoption of immunity of private property from capture as a primary principle in the reform of the law of maritime warfare. England has
as resolutely upheld the contrary principle. Both have been actuated by their own interest. Napoleon Bonaparte considered that the greatest blow which could be dealt to England would be to compel her to give up her maritime rights 1. And Nelson was of the same opinion, holding that nothing could be more injurious to the maritime interests of this country than the adoption of the principle of free ships, free goods,' which is now, nevertheless, the rule binding upon us under the Declaration of Paris.
Whether it is expedient for England at the present day to agree to the immunity of private property at sea from capture, must be dictated by the circumstances of the particular war in which she engages. It is quite conceivable that different considerations would weigh with her in a war with the United States from those which would arise in a war with France or Germany. In the case of the United States it might be in the interest of both parties to localize the operations of war, and to interfere as little as possible, perhaps for the joint exclusion of neutral vessels, with the traffic across the Atlantic. In the case of a war with France or Germany, England might consider that the closing of the high sea to all traffic by the merchantmen of the enemy would be very much to her own interest.
It is often argued that England would, on the whole, be benefited by the immunity of her commerce from capture, inasmuch as she is exposed to a combination of the Powers against her, which might prevent her from exercising such a protection over her maritime trade as would render its transference to neutral bottoms needless. My learned and eminent friend, Mr. Westlake, has pointed out that transfers of ships to neutral flags which were not bona fide would not be valid against a belligerent, and that it would soon be discovered that for cargoes, carried by vessels specially registered in connexion with the war, the rates of insurance would be almost as heavy under the neutral as under the belligerent flag 2. Certainly belligerent cargoes, having, ceteris paribus, the alternative of using a ship liable to capture or one not so liable, would choose the latter, but this could not affect the great mass of traffic of a carrying country like England, which alone possesses the means of doing its own trade, and in all probability fast sailing vessels would run the risks of capture.
In conclusion, apart from expediency, necessity of war, that is the necessity in which, by the nature of things, a commander is placed of preserving his own forces against destruction, and of
defeating the forces of the enemy, must always stand in the way of any abandonment of the belligerent right to seize all the enemy's property, whether private or public, which can serve him in the accomplishment of either object; any attenuations as regards private property have never extended beyond the prevention of wanton destruction and plunder, and the equalization of the burden of the losses.
THE AUSTRALIAN COMMONWEALTH BILL.
HE Australian Commonwealth Bill embodies the political ideals of a Constitutional Assembly, convened in the closing years of the nineteenth century, and favoured by conditions which afforded a unique opportunity for the achievement of grand constitutional results. All history for precedent! All the world-wide literature of political science for a guide! Freedom from the domestic necessities which impede the action of statesmen in older countries! Freedom to legislate for the territories of a Continent! Such conditions lend a singular interest to the Bill which is now to be submitted to the Imperial Parliament. If I may venture to pass from statements of fact to an expression of opinion, the Australian Federal Convention was an assembly of which no nation in the world need have been ashamed. So much at least is suggested by a perusal of the four bulky volumes which represent the result of its labours.
The clauses of the Commonwealth Bill have already secured some attention in the pages of this REVIEW1. The special object of the present article is to illustrate the fundamental principles which underlie these clauses and to explain their significance. In attempting to attain this object my chief difficulty has been to repress a very natural tendency to excursus. Every single clause of the Bill has its history, and affords material for a volume. Some of the clauses indeed bear the marks of violent times; almost all carry with them an atmosphere of judicial interpretation and elaboration. It is indeed to the rich legacy of unwritten lore that the authors of the Bill are chiefly indebted for their success in achieving a conspicuous brevity. I shall humbly endeavour to follow in their footsteps, telling a plain tale in a plain way, only very occasionally attempting an elaboration of obscure points or a criticism of motives or of policy. The subject naturally falls into three grand divisions: Imperialism, Federalism, Democracy.
A. THE CONSTITUTION AND IMPERIALISM.
The Federal Commonwealth of Australia is to be under the protection and subject to the control of Great Britain. The Imperial principle, consecrated in the preamble, is also recognized distinctly in every department of the Federal Government. April and July, 1899. Articles by Mr. Lefroy.
(1) The legislative supremacy of Great Britain remains, with slight alterations which may affect the occasions on which that supremacy is displayed but leave its existence unchallenged. The Commonwealth Bill can only become law by an enactment of the Imperial Parliament, and any future amendments thereon, or indeed any ordinary legislation of the Australian Federal Parliament, can only become law upon securing the Royal assent. That assent may be given directly or through the agency of the Governor-General whom the Queen appoints. (2) The executive power of the Commonwealth is vested in the Queen and is exercisable by the GovernorGeneral acting with the advice of a Federal Executive Council. (3) In judicial matters the Privy Council still remains the court of ultimate appeal wherever the interests of some other part of the Empire are affected, or where the Queen grants special leave of appeal from the Federal High Court in matters not involving the interpretation of the Constitution (though the Federal Parliament may limit the matters in which such appeals may be asked), or, finally, where litigants who appeal from the Supreme Courts of the States choose to submit their cases to the Privy Council in preference to the Federal High Court. The oath of allegiance is sworn to Her Majesty Queen Victoria, Her heirs and successors according to law.'
Mr. Lefroy, in his most recent contribution to this REVIEW 1, has drawn attention to certain provisions of the Commonwealth Bill 'which would clearly invade what has hitherto been deemed the Imperial area of power.' These provisions empower the Federal Parliament to legislate upon external affairs, to control fisheries in Australian waters beyond territorial limits, to regulate the relations of the Commonwealth to the islands of the Pacific, and to enforce the laws of the Commonwealth on all British ships, other than menof-war, which trade between ports of the Commonwealth. The last of these provisions, so far from introducing a novelty, is taken from the Federal Council of Australasia Act, 1885: and so far from representing a design upon the Imperial power, had been inserted in the Federal Council Act in a more extended form, and upon the initiative of the home authorities. The precise words of the Act of 1885 deserve quotation. Laws were made enforceable' on all British ships, other than Her Majesty's ships of war, whose last port of clearance or port of destination is in any such possession or colony.' The earlier editions of the Commonwealth Bill contained this clause in its less restricted form. Speaking thereon, Sir John Downer said: 'Seeing that the Imperial Parliament, acting under the advice of the Board of Trade, inserted a clause which 1 July, 1899. 2 Convention Debates, Sydney, 1897, p. 242.