CURRENT LEGAL ARTICLES.

IN an article on "The Limitation of the Right of Appeal in Criminal Cases," in the Harvard Law Review for March, Nathan A. Smyth gives certain statistics relating to appeals in criminal cases in New York county during the five years, 1898-1902, and then. suggest how the right of appeal should be limited. He says:

The review of the reversals, however, suggests a way by which the right of appeal may be greatly limited without going so far as to run the risk of committing substantial injustice. The fundamental theory upon which the suggestion about to be made is based, is that juries can be trusted. Our whole system is based on that theory, yet we have been far from consistent in following it. There are certain errors which may be committed in the conduct of a trial which, if juries are trustworthy, we can trust the jury to correct. There are other errors which the jury cannot be supposed to correct. The present suggestion, in a word, is to limit the right of appeal to cases where error of the second sort is committed.

No risk would be run in making it impossible to appeal on the ground that the verdict was against the weight of evidence because the jury is a more reliable tribunal than a higher court, so far as the facts are concerned. As for errors in judges' charges it is doubtful if, in cases where the testimony is prima facie sufficient to prove the crime, a verdict is ever unjustly influenced by such error. Juries do not convict unless they are convinced of moral guilt, and if the facts testified to make out a prima facie case of legal guilt, no wrong has been done by the verdict. So, too, any misconduct of the prosecuting attorney is more quickly detected and resented by the jury than by any higher court.

In two instances, however, error does substantial injustice which cannot be corrected by the jury. These are, first, where the uncontradicted evidence for the People does not prove a crime under the law. The conviction in such a case indicates the jury's belief that the acts charged as a crime were

done by the defendant-the jury is bound by the court's ruling that those acts constitute a crime against the law. The second case is where a defendant is wrongfully prevented from introducing evidence in his own behalf. He has not been given a fair chance to present his side of the case, and the jury are bound to consider only what he has introduced, and so cannot correct the error.

Thus we come to the suggestion that appeals from convictions be limited to casesI. Where it is claimed that the evidence submitted by the prosecution does not establish the crime prima facie.

2. Where it is claimed that material evidence offered by the defendant has been improperly excluded.

3. Where the trial judge reserves some question of law which he considers doubtful and of importance.

By so limiting the appeal most of the technical loopholes for escape would be closed and the number of appeals would be reduced. At the same time opportunity would be left to remedy any substantial injustice that is at all likely to occur. If some provision could be devised whereby in the third class mentioned the State could be made to bear the whole cost of appeal in the case of poor defendants, the greatest injustice of the present system would almost entirely disappear.

"STATE Police Powers and Federal Property Guarantees" are the subject of an interesting paper by Charles C. Marshall in the Columbia Law Review for March. After pointing out the significance of the License Cases, Slavery Cases, Slaughter House Cases, and the Grain Elevator Case, as regards State Police Powers-powers which the Supreme Court "for a hundred years has exalted above the constitution itself"– Mr. Marshall finds it "difficult to discover any basis for that rigid conception of property which prevails in American life, for that widespread notion of Federal property guarantees ready to be invoked by the citizens of the States, for that conviction so deeply imbedded even in intelligent minds

that the legal conception of property is definite and permanent, that "property" existed prior to the Constitution and is superior to it, and that the principal object of that instrument is to preserve it forever in its original lines regardless of economic, social and moral changes, the exigencies of society and the very life of the State itself."

Especially timely is the writer's comment on the Northern Securities Case: Underneath the question whether the Northern Securities Merger is a violation of the Federal Anti-Trust Law, which is the question presented in the case of the United States against that company, is the more fundamental and perhaps the controlling question [assuming the absence of purely technical questions] presented in the case of the State of Minnesota against that company, whether the Northern Securities Company, under the sovereignty of New Jersey which created it, can assert rights in property localized in Minnesota, contrary to the statutes of that State enacted in the exercise of its Police Power. It is the same question which inhered in the License Cases and in the Slavery Cases-the paramount right of a State in the exercise of its Police Power to determine the status of property localized or situated within its territorial limits as against the legislation of another State, touching such property. The fugitive Slave Clause alone prevented the assertion of this right in regard to the escaped slave. The Commerce Clause alone prevented its assertion in regard to the barrel of gin, and then only as to the first sale in the original package. What shall prevent its assertion by the State of Minnesota in respect to the railways of that State? By what Federal Power or Guarantee, by what inherent Sovereign Power of her own, can New Jersey assume to determine the status of the ownership of the railways of Minnesota, and by the alchemy of modern corporation law convert real estate in Minnesota into personalty through the medium of stock certificates, and consolidate in the ownership of a New Jersey corporation the railways of Minnesota, whose consolidation the fundamental law

and express policy of that State forbid?

The plea may be made, as it has been made by the Northern Securities Company in the Minnesota case, that freedom of commerce forbids that the State of Minnesota should have the power to prevent the consolidation of her State railways, in that such consolidation, necessarily affecting interstate commerce, would be interference therewith, and therefore illegal. The object of this plea is obviously to secure the consummation of the purposes of the Northern Securities Company through the nullification of the Railway Law of Minnesota. But the plea contains within itself its own refutation, for surely if the law of the State of Minnesota consolidating her railways is void because inimical to the Commerce Clause of the Federal Constitution, the Law of the State of New Jersey creating a corporation which by original purpose or subsequent accident consolidated those railways in a single ownership would be equally inimical to the Commerce Clause. . . . But argument in respect to the validity of the plea is superfluous for the Supreme Court has already spoken (in Louisville & Nashville Railway v. Kentucky, 161 U. S. 677).

THE interesting question "Is the British Empire Constitutionally a Nation?" is discussed by Stephen B. Stanton in the March number of the Michigan Law Review. After noting that the power of declaring war and of making peace, and the management of foreign relations and of the army and navy, reside wholly with England, and that imperial expenses must be met with English taxes alone, he says:

The British Empire is federal in spirit but imperial in form. England is trying to run it on federal principles without the facilities of a federal system or the strength of a federal constitution. She thinks and plans for the colonies; endeavors extra-constitutionally to learn their needs and wishes; and she spends and fights for them. But she has not, to meet this expenditure, the disposal of an imperial revenue; nor in the discharge of

this care and protection has she at her command the strength of a full imperial armament. Thus she conducts her imperial rule with the minimum of benefit and the maximum of burden to herself. For her, "union is not strength," but exhaustion.

Now it is plain that this great potential nation forgoes its full strength for lack of a suitable constitutional structure of government. There is no joint body to attend to joint interests. The Empire, highly developed in local government, is insufficiently organized for collective purposes. It has no imperial revenue because it has no representative branch of government to administer such revenue. It cannot call forth its entire military and naval power so long as the disposal thereof is left in the hands of England alone and so long as she alone conducts the Empire's dealings with foreign countries leading up to war and decides as to its declaration. . . . The entire Empire suffers from this defect of central power, but England most, the colonies least. . .

Central power incommensurate with centre responsibility; that is what we find to be the Empire's constitutional weakness. In the long run, duties and rights must always be lodged in the same hands. England cannot perform imperial duties if she gives away imperial powers. They must again be joined. Whether joined in the colonies,— which already have all the rights, and so colonial separation be the outcome; or in England where now all the duties are concentrated (or in a Federal government),— and so a strong, united Empire be the outcome,--that is for the future to an

swer.

Without imperial unity of action and imperial strength, there cannot, of course, be national action at all; and to the extent to which these fail the empire constitutionally. is not a nation. Greater centralization alone can make it one; and in an empire this is to be gained in but two ways, by Despotism and by Federalism. To an empire which treads the constitutional path, the latter alternative alone remains.

SOME of the "Interesting Aspects of the Russo-Japanese War" are discussed by F. Baty, in The Law Times. Among other matters commented upon are these:

It may not be out of place to indicate briefly the lines on which discussion of the international questions already raised by the Far Eastern conflict must proceed. It is common ground that no formal declaration of war need precede actual hostilities; and, indeed, most modern wars have commenced without one. Whether this would apply to a case of absolute surprise, like the sudden invasion of the Palatinate by Louis XIV., may be doubtful. But no such point arises in the present circumstances, where the diplomatic tension was such as to dispense with the necessity of any declaration. The enemy, in such a state of things, is not taken unawares, is (or should be) perfectly on guard, and is free to take measures which may cause extreme future embarrassment and are only to be stopped by force. A formal warning of the intention to attack is therefore unnecessary, and perhaps its disappearance is not to be regretted.

Whichever side fired the first shot, it is quite clear that the operations against the Russian fleet in Port Arthur were legitimate acts of war. However complete the actual surprise, it could only have been one which should have been foreseen; and it now appears that the Russians were, in point of fact, draw up in line of battle to meet the opposing forces. Under these circumstances, to talk of treachery in connection with the Japanese strategy is absurd, and can only console a St. Petersburg audience.

From the accounts which appear of the seizure of six Norwegian ships laden with Russian coal, one infers that Japan includes coal in the class of contraband articles, or at least in that species of merchandise which may become contraband if destined for the naval or military use of the enemy. It will be remembered that the position of coal (which is analogous to the naval stores, timber, tar, hemp, etc., of Napoleonic times) was the subject of much discussion in 1870.

Curiously, it does not seem to have attracted much attention in the American Civil War. The Chemulpo conflict also gives rise to one or two points of interest.

The reception on board the Talbot, Elba, and Pascal of the survivors of the very valuable cruiser Varyag, and their refusal by the United States vessel in company, furnishes an example of the so-called right of asylum. It is a little difficult to understand the United States' position in complying with the Japanese demand that the fugitives should not be received on board. Possible it was dictated by remembrances of the KcarsageAlabama affair, when the British yacht Deerhound (whose owner certainly had no Southern sympathies) picked up the survivors of the latter. Clearly, there is no fixed principle that on the high seas, or in neutral waters, a neutral may not receive and shelter fugitive belligerents. What has been open to discussion is the question whether the neutral may do so in the protesting belligerent's waters. Thus, it was a common occurrence in American émeutes, dignified with the term "revolutions," for refugees to seek shelter on foreign warships. Their reception was complained of as a breach of the condition on which the foreigners were admitted to the hospitality of the port. Yet the party struggles of the young republics were so frequent and were accompanied by such vindictive proscriptions that the custom of giving shelter was never abandoned. A parellel case was the reception of fugitive slaves. The contest in Parliament and elsewhere is not yet forgotten, which turned on the propriety of affording shelter to escaped slaves in defiance of the local law. The prevalent opinion is that these historic instances of asylum were exceptions to the general rule caused by the stress of circumstances. In the present case there is the curious complication introduced by the anomalous position of Corea. It might be urged that the port of Chemulpo was not really a neutral one at all, but virtually Japanese. This, however, opens up the wide question of the neutrality. -and, indeed the existence-of Corea as a Government. There seems no reason for

considering Corea other than neutral, and the forcible acts which the Japanese authorities appear to be doing in that country may technically be acts of war. If Corea adopts and approves these acts, no war can arise, and she preserves her neutrality, subject to Russian complaint. But she does not necessarily and at once become the ally of Japan; and it therefore seems that the British, Italian and French ships were justified in receiving and retaining on board Russian sailors rescued in a neutral Corean port.

THE interesting question of Canada's "Rights in Hudson's Bay," is discussed by W. E. O'Brien, in the Canada Law Journal. He says:

Hudson's Bay, which ranks in point of extent with the Black Sea and Baltic, differs from those great inland seas so materially that no common rule of international law is

applicable to all. No precedents for our guidance can be found in the solution of the many questions which have arisen with regard to them, nor is there, in any part of the world, a case precisely similar to ours. Our inland sea is peculiar in this-that while the shores that surround it are all in the possession of a single power, which is not the case with either the Black Sea or the Baltic, yet the channel by which it is approached, varying in width from one hundred to sixty miles, differs entirely from the narrow passages to those other seas which can be controlled by the Powers occupying them.

By their original charter the Hudson's Bay Company were granted the sole right to trade and commerce in all the waters lying within Hudson's Straits, including of course what is known as Hudson's Bay, and that sole right, whatever the validity of the grant may be, undoubtedly passed to Canada by the purchase of the Hudson's Bay territories and all pertaining thereto in the year 1869.

By the treaty of 1818 between Great Britain and the United States, which defined the rights of the Americans to fish off the coasts of Labrador and Newfoundland, reference was made to the exclusive right of

the Hudson's Bay Company. The waters inside of Hudson's Straits are not mentioned in the treaty. The natural inference from this would be that the Americans recognized the existence of those exclusive rights and are debarred from now calling them in question.

The several questions then which must be faced in dealing with this matter are, first: Had the British Government the right to treat the waters of Hudson's Bay as mare clausum, and therefore to confer upon the Hudson's Bay Company the sole trade and traffic of Hudson's Bay? If that can be established no further argument is necessary. Again by the treaty of 1818 did not the Americans recognize that right? If so, are they not precluded from now calling in question the sovereignty of Canada in these. waters?

Taking the first point into consideration, the nearest approach that we can find to a parallel case is that of Conception Bay in Newfoundland-a sheet of water forty or fifty miles long, and over twenty miles wide at its mouth. In Direct United States Cable v. Anglo-American Telegraph Company, 2 App. Cas. 394 (1877) it was held, on appeal to the Privy Council, that this bay was a British Bay, and a part of the territorial waters of Newfoundland, in opposition to the contention that the bay was part of the open sea, and not mare clausum. . .

Evidently, there must be some other and wider principle upon which the claim to jurisdiction over land-locked waters by the Power owning the coast surrounding them must be founded than the precise width of the entering channel.

In the Conception Bay case this was found in the undisputed sovereignty exercised for many years by the British Government. In a case arising from the seizure of a ship in Delaware Bay the entrance to which is more than six miles in width, the United States Courts held the seizure to be illegal as the waters of the bay were neutral, the shores on both sides being part of the territory of the United States. Great as is the extent of Hudson's Bay, it is as

completely a "British Sea" as was the Black Sea a Turkish sea before the Russians obtained a share in its coasts; and wide as is the channel leading into it, it is in no sense a highway of nations, or a road for commerce, as are the Dardanelles, the Straits of Gibraltar, or the Sound leading to the Baltic. It is not so now, and nature forbids it ever becoming so. Closing the Hudson's Straits would be no hindrance to commerce, or inconvenience to travel. It would be a matter of as purely domestic concern as would be the closing of the channels leading from Lake Huron to the Georgian Bay. The width of the straits, therefore, no more affects British rights in Hudson's Bay than does the width of the mouth of Chesapeake or Delaware Bays effect the rights which the Government of the United States claims in those by no means land-locked waters.

The American Lawyer for February prints in full Professor William C. Morey's address, delivered before the Rochester Bar Association, on "International Right of Way," in which the recent action of the Administration in the Panama matter is up

held.

The conclusions which Professor Morey draws from his discussion of the moral and legal relation of sovereign States are these:

1. That the jurisdiction of a nation is morally, but not therefore legally, qualified by the commercial rights and interests of other nations.

That the international right of way over the natural lines of commerce situated within the territory of sovereign States-although based upon principles of natural justice has become legalized only so far as it has been sanctioned by treaty' stipulations.

3. That there is legally recognized at present no international right of eminent domain, whereby the territorial rights of a State may be forcibly appropriated without its own consent.

4. That the policy of a nation to use its influence through diplomatic and other legal measures to open necessary lines of commerce through the territory of other States