any system, the keen edge of its defects are worn off by custom and habits of thought.

The French have a system of decisions, so to speak, but they look upon these decisions. in an entirely different way from ourselves. The French barrister or advocate, in pleading before the Court, will say in effect to the Bench, "Your Honor, you will decide just how you want to, but here is how the Court at Lyons decided in a similar case once, or at Nancy or in Paris." But the advocate will not say to the Court, in effect, "Here is what your Court decided, or the Appeal Court decided, in a similar case, and so it is your duty to decide so and so.

The French judge has a pretty good chance to injure the causes of justice by his freedom from being obliged to follow precedent to the degree to which his American confrère is accustomed. The really sound education of the French judge is one reason why the system has not yet produced chaos.

"A judge must give judgment between. parties to a suit. But there his functions cease. He is forbidden to go further than that, that is to say, explains Colmet de Santerre, 'to lay down principles for the future which would be applicable in all cases similar to that in which he has given judgment; for, to do so, he would be encroaching on the prerogatives of the Legislator.' 'This principle rests upon Article 5 of the Civil Code: Judges are not allowed to decide cases submitted to them by way of general and settled decisions.'"

The meaning of this Article 5 of the Civil Code is, says Baudry-La-Cantinerie "that the judge cannot perepetuate his views for all time in regard to his interpretation of the law-i. e., interpret the law today in such a way as to interpret it for the future. So that if a judge has wrongly construed the law the first time, it is useless to continue in the same path. So that the cause of justice will suffer

Manual of French Law, p. 87. "Précis de Droit Civil.

less from two contradictory decisions, than from a series of bad decisions which are consistent among themselves."

In early times French Parliaments rendered decisions on causes submitted to them which were called "arrêts de règlement.” These decisions were quite like our Court decisions of the present day in America. The king, however, overruled these "arrêts" whenever his caprices led him to desire to do so. The French Civil Code of today (Article 5 above quoted) clearly prohibits a judge from rendering "arrêts de règlement” and this system appears to give satisfaction generally in France. I do not suppose a French lawyer really worries himself about the advantages or disadvantages of the system. He is used to it. The young French practitioner of today will point out that the profession is not as exclusive now as in former times; that conservatism has many advantages; that the branches of avoué (attorney) and notaire (conveyancer) are unreasonable monopolies; that allowing women to plead as advocates is rather of an experiment; that it is very severe on an avocat (barrister) not to be able to charge for his services and sue for his fees if need be, and so on; but that the present system of rendering decisions in France should be exchanged for the American or English system, that the modest abstracts of cases which provide the French barrister with arguments should be swept aside in favor of our teeming shelves groaning under Reports, is as far from his imagination as to borrow judicial ideas from the tribes of Central Africa.

The fact that a certain question has been decided altogether differently in different parts of France does not trouble the French lawyer of today. He remembers that if this kind of thing is inconvenient nowadays, it was worse in "the good old times," when, as Voltaire said, a man travelling in his coach from one part of France to another, changed the system of laws under which he was gov

erned as often as he changed horses. There is today what is called a "constant jurisprudence," much valued apparently, by professors and commentators, but this "constant jurisprudence" is merely what we call the "tendency" of Courts to decide in one way or another.

I see only one feature in modern French decisions which is characteristic of the present times-and that is an extraordinary development in the direction of deciding legal questions by-I know of no other expression better than "the rule of thumb." If anyone can tell me by what process of legal reasoning this new system of deciding legal questions is arrived at, I shall be in a better position to define the "rule of thumb."

Chief Judge (President) Magnaud, of Château-Thierry, is responsible for introducing this system in France. This really talented, conscientious man, but extraordinary jurist, has for a number of years been the hero of a large number of his fellow citizens, though a source of embarrassment (almost consternation) to his colleagues. His decisions are founded on a wide knowledge of human nature and an excellent knowledge of psychological principles. But his decisions, from a lawyer's point of view are perplexing -to say the least. A number of his decisions have been collected and printed, and it is the second volume of these decisions recently published that I have now before me. "Le bon juge" of Château-Thierry, as M.

Magnaud is called, is not alone. At Paris, there is another "bon juge"-M. Séré de Rivières, President of the 8th Correctional Chamber.

To give an example of M. Magnaud's decisions, let me cite a petition for divorce, 18 March, 1903. M. and Mme. F. made mutual petition after voluntarily living apart for ten years. Judge Magnaud granted the application, stating in the judgment "that under the circumstances, adultery, of which one of the petitioners complained, was so justified by nature and sentiments of the heart that it could not be considered as the fault of one but of both in voluntarily living apart for so long." Again, December 12, 1900, M. and Mme. T. mutually demanded divorce. Judge Magnaud declined to hear evidence, as useless, and granted the petition, giving as one of his reasons "that if divorce by mutual consent was not yet the law of the land, the Court, nevertheless, should take the reciprocal petition into consideration, for two souls could not be enchained perpetually one to the other against their consent." These are only two decisions taken at hazard, but they will explain my meaning. That such a judge could keep his position is difficult to understand, except on the grounds of the individual worth of the judge and the substantial satisfaction he gives. What a dangerous power an unworthy judge might exercise, if he were to follow the "rule of thumb" principle is fearful to contemplate.

analogous case of an army which has been forced to retreat into neutral territory. The surrender of these sailors to Russia under the circumstances would have furnished a just cause for protest on the part of Japan, and might have tended in future wars either to discourage rescue from a sense of humanity for fear of offending one of the belligerents on the one hand, or to have encouraged it from motives of partiality on the other.1

In the earlier period of the war there were frequent comments in the Russian press on what was called "American meddling."

'A different course was followed by the British Government in the famous case of the Deerhound, a private yacht belonging to the Royal Yacht Association of England. The owner of this yacht, acting at the request of Captain Winslow of the Kearsarge, helped to rescue the officers and crew of the Alabama upon the occasion of the latter's sinking at the hands of the Kearsarge during the Civil War. To the surprise of Captain Winslow, the Deerhound, after picking up a certain number of men, largely officers (in cluding Captain Semmes) of the Alabama, hastily and surreptitiously steamed off with its precious cargo to Southampton. Several of these had, as it seems, already surrendered themselves to the Kearsarge as prisoners of war, and there was some evidence of collusion between Captain Semmes and the owner of the Deerhound. sure, the Deerhound was a private yacht instead of a warship, but she seems to have had a sort of semi-official character as a boat belonging to the Royal Yacht Association. In any case, the British Government would probably have best performed its neutral duties by interning the officers and men of the Alabama as prisoners of war. For the facts of the case, see the Claims against Great Britain, Vol. III. pp. 261-308 (1st sess. 41st Cong. 1869). For a somewhat different view of the law and the facts, see Bernard, The Neutrality of Great Britain During the American Civil War, pp. 429-30.

To be

2 A loud outcry was raised by the Russian press late in February in consequence of a report that an application had been made to the United States Government by the Commercial Cable Company (presumably acting in the interest of Japan), for permission to connect Japan with Guam in the Philippine Islands (and thus with the rest of the world). by means of a submarine cable, it being feared that the two existing cables connecting Nagasaki with Shanghai would be cut by the Russians. In such a case Japan would have been cut off from telegraphic communication with the rest of the world.

In Russia the view was said to have prevailed that the granting of such a permit by the United States would constitute a breach of neutrality, al

These seem to have been largely inspired by the pro-Japanese tone of the American press, and also by the interest manifested by the Government and people of the United States in the fate of China. It goes without saying that expressions of opinion and sympathy on the part of neutral individuals, or of the newspapers, or even of public meetings, in behalf of either belligerent do not constitute a violation of neutrality. No Government can be required to interfere with such free expression of opinion or sympathy, and it is not desirable in a land animated by the traditions and spirit of freedom that it should attempt to do so. "It is a mere confusion of ideas to pretend, as Prince Mestchersky pretended a few days ago, and as some people in this country seem to imagine, that because it is our duty as a State to observe the legal obligations of neutrality, it is also our duty as a people to affect indifference toward both belligerents in the present struggle." 3

Our

The American sympathy for Japan seems also to have sought expression in several practical ways. For example, it was announced in February that sixty residents of Chicago (among them being a number of veterans of the Spanish-American War) inthough there seems to have been no official intimation or expression of opinion to this effect on the part of the Russian Government. Government appears to have been similarly noncommittal. In reply to an informal inquiry by Count Cassini, the Russian ambassador, at Washington, as to the truth of this report. Secretary Hay is said to have denied that the United States Government was at present considering such an application. (See Chicago Record-Herald for March 2, 1904). There thus appears to have been no official expression of opinion on either side, but it is interesting to notice that telegraph and telephone materials are included in the list of articles considered contraband of war published by the Russian Government on February 28.

The legality of propriety of laying such a cable would seem to depend upon the question of fact as to whether it was an enterprise in which the animus videndi or the animus belligerandi predominated.

3 Slightly adapted from an editorial in the London Times (weekly ed.). for March 7, 1904. For some official utterances of American statesmen on this head, see Wharton's Digest III., §389.

tended to sail for the Orient in spite of an announcement by Japan to the effect that she desired no foreign troops, and numerous applications are said to have been made by American citizens for permission to enter the military and naval service of Japan. It was also reported in February that a movement was on foot at Atlanta to provi le warship for the service of Japan. At a mass meeting held in New York on February twelfth (at which the majority of those present were Japanese, but which was also attended by a number of American citizens— mostly Jews, it is said) a committee reported in favor of raising a Japanese war-fund of $5,000,000 by loans, gifts and contributions to the Red Cross Society. The question was raised as to whether American sympathizers could contribute to the Japanese war-fund without violating the neutrality laws of the United States or the obligations of International Law. The Japanese Consul General, M. Uchida, is reported to have said that he thought this point had not been definitely settled, although he declared that he should be ready to receive contributions; but he was of the opinion that there could be no lega! objection to the purchase of Japanese war bonds as an investment, and he said that there was no question but that Americans. could donate as much as they liked to the Japanese Red Cross Society.1 The recent successful floating of a large Japanese war loan in England and the United States, as also the successful floating of a still larger Russian loan in France, also raises the question as to the legality of such loans.

In respect to the legality of foreign enlistment, it may be said that such enlistment is entirely and explicitly forbidden by the United States Neutrality Act of 1818 and by the British Foreign Enlistment Act of

For a report of this meeting, see New York Times, for Feb. 13, 1904. M. Takahira. the Japanese minister at Washington, is said to have received numerous offers of large contributions to the Japanese war fund from Americans. It is not known whether these were accepted.

1870, and, we presume, by laws or by proclamations of neutrality in most countries. Our own law prohibits all American citizens not. only from enlisting or entering the military or naval service of either belligerent, but also from hiring another to enlist or from hiring another to go beyond the jurisdiction of the United States with intent to enlist.2 The levying of troops within the borders of a neutral State or "anything like recruiting on a large scale" is distinctly forbidden in modern times by the law of nations, and the failure to prevent these things would constitute a serious breach of neutrality. But on the other hand "a State is not expected to take precautions against the commission of microscopic injuries." "It is not implied for a moment that the Government of a neutral country is obliged to keep watch over each unit of its population, and (that it) can be made responsible if a man here and another there crosses its frontier for the purpose of taking service with a belligerent." Besides although there is no right of expatriation known to International Law, it is always open to any individual to renounce his nationality and enroll himself as a citizen or to enter the service of another State. The failure of the United States Government to prevent the departure of a certain number of her citizens for the Orient and the enlistment of these in the Japanese army could not be made a serious ground for complaint on the part of Russia, although such conduct on the part of our citizens would be a

2 It should, however, be remembered in this connection that the municipal laws of a State are not necessarily the measure or standard of its international obligations. "It is not the duty of a neutral government to prohibit the enlistment of its subjects in the service of a foreign belligerent. such service taking place beyond its territorial jurisdiction. The neutral ruler may punish by municipal nenalty a subject so engaging, but, in default of treaty stipulation, he is under no international obligation so to do." Walker, The Science of International Law, p. 446.