CORRESPONDENCE.

To the Editor of THE GREEN BAG:

Sir: Does International Law permit neutral nations to supply coal to Japan or Russia? Is coal contraband?

Although the introduction of the use of coal into ships of war began early in the last century, the Crimean war was the first maritime struggle of importance in which such vessels were propelled by steam power. Confronted by new conditions, Great Britain, after stopping coal on the way to a Russian port, applied to that commodity the doctrine of conditional contraband, claiming that it was an article which was employed in a double capacity. When the question arose. again in 1859, in the war between Austria and France, the British foreign office warned British merchants that "it appears to Her Majesty's government that, having regard to the present state of naval armaments, coal may, in many cases, be rightly held to be contraband of war, and, therefore, that all who engage in the traffic must do so at a risk from which Her Majesty's government cannot relieve them."

Mr. Lewis Cass, United States Secretary of State, writing in 1859, said on the question whether coal was contraband: "The attempts to enable belligerent nations to prevent all trade in this most valuable accessory to mechanical power have no just claim for support in the law of nations; and the United States avow their determination to oppose them, so far as their vessels are concerned." Again, in 1885, Mr. Bayard, Secretary of State, wrote: "It is also to be observed that the fact that certain articles of commerce are contraband does not make it a breach of neutrality to export them. There has not been since the organization of our government a European war in which, in full accordance with the rules of International Law, as accepted by the United States, munitions of war have not been sent by American citizens to one or both of the belligerents; yet it has never been doubted that the munitions of war, if seized by the belligerent against whom they were to be used, could have been

condemned as contraband. The question, then, is whether furnishing to belligerents coal and life-shells, which appear to have composed the cargo of the British vessels which gave rise to this correspondence, is a breach of neutrality, which the law of nations forbids. The question must be answered in the negative as to coal, and the same conclusion must be adopted with regard to lifeshells, which are said to be projectiles used in the bringing to shore or rescue of wrecks. Under these circumstances, it is not perceived why in the present case the United States authorities should intervene to prevent such supply from being forwarded to the open ports of either belligerent. Even supposing such articles to be contraband of war, and consequently liable to be seized and confiscated by the offended belligerent, it is no breach of neutrality for a neutral to forward them to such belligerent ports, subject, of course, to such risks. When, however, such articles are forwarded directly to vessels of war in belligenert service, another question arises. Provisions and munitions of war sent to belligerent cruisers are unquestionably contraband of war. Whether, however, it is a breach of neutrality by the law of nations to forward them directly to belligerent cruisers, depends so much upon extraneous circumstances, that the question can only be properly decided when these circumstances are presented in detail."

When the British neutrality proclamation, issued upon the outbreak of the War of the Rebellion, came up for discussion in the British House of Lords, the Foreign Secretary (Lord Granville), after referring to articles clearly contraband, said: "There are certain other articles, the character of which, can be determined only by the circumstances of the case"-a remark which seems to have been made more definite by Lord Brougham that coal might be contraband "if furnished to one belligerent to be used in warfare against the other," and by a still more precise statement by Lord Kingsdown, better known as Thomas Pemberton-Leigh, that "if coals are sent to a port where there are war steam

ers, with a view of supplying them, they become contraband." In accordance with such ideas, coal has been listed by the British Admiralty as "conditional contraband." The same conclusion has been reached by our own government, and the Naval War Code declares coal conditionally contraband "when destined for a naval station, a port of call, or a ship or ships of the enemy."

The United States enjoyed the benefit of the English regulation in the matter of the Geneva award, in which it was held that "if an excessive supply of coal is connected with other circumstances which show that it was used as a veritable res hostilis, then there is an infraction of the second article of the treaty."

Germany, going even further than the United States and Great Britain, maintained during the war of 1870, with France, that the English government should not only regard as contraband all cargoes of coal bound for the French fleet in the North Sea, but that all exports of coal to French ports should be prohibited. It should be specially noted, however, that some European countries have always assumed a contrary position. In 1859, France declared that coal was not contraband, and she repeated that assertion in 1870. Among those who upheld her in that contention may be mentioned Russia, who, during the West African Conference at Beriin in 1884, vigorously protested against the inclusion of coal among articles contraband of war, declaring that she (Russia), would "categorically refuse her consent to any articles in any treaty, convention, or instrument whatever, which would imply its recognition" as contraband. But this view appears to have been adandoned, for the Russian rules. of war, published officially at St. Petersburg on February 28th last (printed in New York Times of 29th), contain the following clause (H. of Rule VI): "Every kind of fuel, such as coal, naphtha, spirits, etc., will be regarded as contraband of war."

LAWRENCE IRWELL.
Buffalo, N. Y., May 5, 1904.

the Procedure in Equity in the Circuit Courts of the United States, including Appeals and Appellate Procedure. By C. L. Bates. 2 Vols. Chicago: T. H. Food, and Company. 1901. (lxii.+1409 pp.) A book published in 1901 can hardly be called a new law book. At any rate it should not call for extended notice, but the genuine excellence of Mr. Bates' work and the further fact, that it has not been reviewed in the columns of THE GREEN BAG may well justify a word of hearty praise.

The abolition of the system of common law and equity pleading has not destroyed the fundamental distinction, even in code States, between law and equity, although a simplified and single form of action has taken the place of the former elaborate and scientific forms of pleading in common law and equity courts. The knowledge of strict common law pleading is admittedly a great and abiding service even in code States, and this is equally true of equity pleading. It is, indeed, truer of the latter than of the former; for equity pleading in its technical provision and refinement subsists in our Federal Courts, uninfluenced by its recent modifications in England, from which the system was derived, and by its non-existence in many of the States of the American Union.

The history of equity procedure in the United States may be given in a few words, preferably taken from Mr. Bates (Sects. 13, 14, 15, 16): "The act of May 8, 1792, authorized the Supreme Court to prescribe rules to the circuit and district courts in suits in equity and admiralty, and this authority was employed and expanded by subsequent

statutes. . . In March, 1822, the Supreme Court, under the authority given to it by the act of May 8, 1792, promulgated thirtythree rules to be the rules of practice for the courts of equity of the United States. . . On March 2, 1842, the Supreme Court promulgated ninety-one equity rules which, with a few amendments and additions, are now in force in the Circuit Court of the United States. . . . Equity rule 90, adopted March 2, 1842, is as follows: 'In all cases where the rules prescribed by this Court or the Circuit Court do not apply, the practice of the Circuit Court shall be regulated by the present practice of the High Court of Chancery in England as far as the same may reasonably be applied consistently with the local circumstances and the local conveniences of the district where the court is held not as positive rules, but as furnishing just analogies to regulate the practice.'

The Supreme Court has interpreted rule 90 in the leading case of Thompson v. Wooster, 114 U. S. 104, 112 (quoted by Mr. Bates, Sec. 17), which shows to what extent English procedure as existing in 1842 was adopted and the texts (Daniell's 1st edition of 1837 and Smith's Practice, 2d edition, 1837) in which that procedure was recognized as correctly and adequately embodied and expounded. If we bear in mind the vast extent and importance of the cases in the Federal Courts and if we remember that the present English Equity practice has changed since the promulgation of the rules of 1842, so that English treatises on Equity practice can have no great weight with us, the need of such a book as that of Mr. Bates is readily seena need hardly met by more than one American book on the subject.

In two introductory chapters Mr. Bates outlines the basis of equity jurisdiction, the system and sources of equity procedure, and passes to a consideration of the parties and places of bringing suit. Then follows a careful and detailed treatment of each step in the bringing and prosecution of a suit up to and including appeals. In each instance the rule of pleading and practice in the English

Chancery is considered based upon Mitford (cited as Lord Redesdale), Daniell and Smith. Then follows the rule applied in Federal Courts as based upon or modified by statute, rule of court or judicial decision. In this way, step by step, practice and procedure are carefully, authoritatively and in an interesting manner placed before student and practitioner.

The work is well planned, admirably executed, and lays both bench and bar under a heavy obligation to this intelligent, industrious and thoroughly competent and informed author.

A TREATISE ON SPECIAL SUBJECTS OF THE Law OF REAL PROPERTY. By Alfred G. Reeves. Boston: Little, Brown, and Company. 1904. (lxv+913 pp.)

This volume consists of some portions of a treatise which the author hopes to complete within three or four years. The complete work, which is planned to consist of two volumes, will cover the whole of real property. The parts now ready, and presented in this volume, contain, as the sub-title says, "an outline of all real property law, and more elaborate treatment of the subjects of fixtures, incorporeal hereditaments, tenures and alodial holdings, uses, trusts, and powers, qualified estates, mortgages, future estates and interests, perpetuities, and accumulations." The portions thus taken from various parts of the projected work are complete and useful in themselves and indicate clearly what will be the characteristics of the entire treatise. Either a cursory or a thorough examination of the present volume shows that here is the work of an unusually skilful hand. The materials used are both the old and the new cases, with due recognition of the relative importance today of old and new; and the result is both scholarly and practical. It is quite obvious that the labors of earlier writers have been utilized; but it is also obvious that such use has been thoroughly honest, and that this volume is the result of new labor. The clearness of the style and the carefulness of the analysis and defini

tions render the volume useful to students; but the needs of students are certainly not unduly emphasized; for example, from their point of view the discussion of the Statute of Uses is disproportionately short, whereas from the point of view of practitioners this discussion accurately corresponds to the present importance of the subject. Indeed, here is a book that any one, whether beginner, practitioner, or teacher of law, can read with unusual satisfaction.

COMMENTARIES ON THE LAW OF TORTS. By E. B. Kinkead. San Francisco: BancroftWhitney Company. 1903. Two volumes. (xxx+1739 pp.)

As the title page calls this voluminous work "a philosophic discussion of the general principles underlying civil wrongs ex delicto,” an obvious comment is afforded by the fatal discovery if the table of cases is to be trusted that the author is apparently unacquainted with three extremely pertinent cases of the highest consequence and greatest fame, namely Lumley v. Gye, 2 E. & B. 216 (1853), Allen v. Flood, 1898, A. C. 1, and Quinn v. Leathem, 1901, A. C. 495. The work is not useless, nevertheless; for although the author in his preface insists that this is a philosophic treatise and not a digest of cases, he happens to be wrong on both points, and the result is that the profession can find here a respectable guide to decisions-especially to those of recent date. The practitioner, but not the reviewer, may forgive the author for describing his work. both on the title page and in the preface, with unwarranted grandiloquence.

HISTORY OF THE CONSTITUTIONS OF IOWA. By B. F. Shambaugh, Professor of Political Science in the University of Iowa. Des Moines: The Historical Department of Iowa. 1902. (vi+352 pp.)

For the lawyer, this enthusiastic account of the origin and development of government in Iowa has at least one chapter of unusual interest. This is the account of the Squatter Constitutions-those rather inartis

tic and wholly extra-legal regulations whereby the early settlers of a neighborhood protected one another in the possession and ultimate purchase of lands upon which, in defiance of the laws of the United States, they had made their homes before sale by the United States, and possibly before survey, and in some cases even before the Indian title had been extinguished. All forms of extra-legal law are valuable as suggesting the reasons for the creation of government and for the recognition of property; and these Iowa regulations have uncommon claims upon the lawyer because of their completeness and because of their probable influence, as pointed out by Mr. Shambaugh, upon the provisions of the Preëmption and Homestead laws.

THE AMERICAN STATE REPORTS Vols 93 and 94. Containing cases of general interest and authority decided in the courts of last resort of the several States. Selected, reported and annotated by A. C. Freeman.. San Francisco: Bancroft-Whitney Company. 1903, 1904. (1066, 1047 pp.).

In the earlier of these volumes the cases selected from recent reports in fifteen States cover even a wider range of subjects than is usual in volumes of this excellent series. The following topics are treated in the more important monographic notes: Constitutional Inhibition against Special or Local Legislation where a General Law can be made Applicable; Jurisdiction of Equity to put Party in Possession in aid of its Decree; Extent to which a Litigant may Control a Cause in which he has Appeared by Attorney; Expulsion of Trespasser; Liability to Corporations of Subscribers to their Capital Stock; Liability for Malicious Prosecution of Civil Action; Mode of Taking Advantage of Breaches of Conditions Subsequent; Liability of Physicians and Surgeons for Negligence and Malpractice; Prescriptive title to Water; Liability of Persons Communicating Contagious or Infectious Diseases to Others; and What Contracts with Newspapers are against Public Policy and therefore Void.

CURRENT LEGAL ARTICLES.

THE Northern Securities Decision" is commented upon adversely by Professor George F. Canfield in an able article in the Columbia Law Review for May. Professor Canfield submits that the following propositions may be stated with reasonable certainty:

I. The Northern Securities decision is wrong on principle, involving a wrong interpretation of the Anti-Trust Act and a wrong interpretation of the powers of Congress under the Constitution; and, with all deference, the actual decree rendered, in its full length and breadth, is absolutely indefensible and violative of fundamental principles.

2. The United States Supreme Court, as now constituted, will not carry this decision to its logical consequences. The decision will be recognized, and more and more clearly as time goes on, as a piece of judicial legislation, resulting from the assumed necessity of suppressing what was supposed to be a great . evil, and of averting greater evils of a similar character, which it was feared this one might produce.

3. The primary practical result of the Northern Securities decision will be simply that the Northern Securities Company itself will be practically suppressed and all similar plans of merger, if there were any such, must be abandoned; but the actual concentration of power and suppression of competition which the Northern Securities Company was supposed to secure will either continue to exist in the hands of the promoters of that enterprise or of those controlling a still larger combination of railway interests.

4. The Pennsylvania Railway Company, the New York Central & Hudson River Railway Company, and other large railway companies, which have consolidated with or bought control of competing railway companies, are safe from attack by the United States Government under the existing AntiTrust Act.

5. The large industrial combinations, such as the Standard Oil Company, United States Steel Company and others, are also safe from attack by the United States Government under existing laws.

6. Joint traffic associations between competing railway companies are illegal, even though they provide simply for the maintenance of reasonable rates, because the union of railway companies is supposed to constitute a monopoly.

7. Joint selling agencies and associations for maintaining prices among competing manufacturing or trading companies are legal, if they are in all respects reasonable, and the companies are not so big as to constitute a monopoly. If they do, however, constitute a monopoly, then they are illegal, whether reasonable or unreasonable, because the test of reasonableness does not apply to monopolies. . . .

Some one has said that the Northern Securities decision was not only good sense, but also good law, and for the public welfare. It is respectfully submitted that the law is now good only so far as the Northern Securities Company itself is concerned and cases involving precisely similar facts, that the Government's law was bad both before the decision and since, as the court, while granting the decree asked for by the Government, rejected its legal propositions. As for the public welfare, it may be that the attack upon the Northern Securities combination checked the wild speculative spirit which preceded its formation; but would not natural forces have taken care of that, as they have taken care of Mr. Sully and his cotton bubble, and in times past of all the blowers of speculative bubbles? Whether it will have the effect of preventing the suppression of competition and the maintenance of rates between the Northern Pacific and Great Northern Railway Companies is yet to be determined.

So far as now appears, one of two things seems likely to happen: Either the practical concentration of power and control will remain in the hands of the promoters of the Northern Securities Company, or it will be superseded by a still more formidable concentration of power, namely, by the practical union of the Northern Pacific, Union Pacific and Southern Pacific Companies.