102 THE AMERICAN JOURNAL OF INTERNATIONAL LAW to be found in Hobbes v. Henning on the doctrine of continous voyages and the tendency of the court's observations is not unfavorable to it.83 In the subsequent case Seymour v. Insurance Company," the doctrine is clearly recognized and approved. The reasonableness of the doctrine of continuous voyages as applied to modern conditions has thus led to its general acceptance by maritime states and by writers of high authority, such as Bluntschli, Gessner, Kleen, Fiore, Calvo, Bonfils, Westlake, Oppenheim, and others. At the session at Weisbaden in 1882, the Institute of International Law condemned the decision in the case of the Springbok in unsparing terms, but this representative body of jurists of all nations finally adopted the American doctrine. At the meeting in Venice in 1896 the following rule was approved: A destination for the enemy is presumed when the carriage of the goods is directed toward one of his ports or toward a neutral port which by evident proofs arising from incontestable facts is only a stage in a carriage to the enemy as the final object of the same commercial transaction.86 This phase of the controversy may be considered as closed. There are some serious objections to the doctrine as applied to the 83 Phillimore, Int. Law, vol. iii, p. 397; Westlake, Law Quar. Rev., vol. xv, p. 28. se La destination pour l'ennemi est présumée lorsque le transport va à l'un des ses 87 Two Centuries of American Law, p. 551, International Law, by Prof. T. S. Woolsey. Otherwise the application of the doctrine is entirely consistent with the general principles of the law of blockade as understood and applied by Great Britain and the United States and approved by Prussia and Denmark, but inconsistent with the theory and practice of France, Italy, Spain and Sweden. The British and American practice subjects the ship to capture and condemnation from the time it sails for a port, the blockade of which has been diplomatically notified unless the port from which the vessel sails is so distant from the seat of war as to justify her master in starting with a destination known to be blockaded, on the chance of finding that the blockade has been removed and should that not prove to be the case with the intention of changing her destination.88 89 Under the French practice a ship has the right to proceed to the entrance of the blockaded port and there learn whether the blockade then exists. Special notice to each vessel duly endorsed on the ship's papers is necessary in addition to any public proclamation which may have been issued by the government. The doctrine is, of course, inapplicable to the law of blockade if this rule is to be accepted,00 but it is consistent with the British and American rule under which the neutral trader subjects his property to confiscation immediately upon sailing with a clear destination for a blockaded port. As the test of criminality is found in the intention, the entire proceedings from the time of sailing are open to investigation." The right to capture the ship at any time after it sails for the blockaded port presupposes the existence of a legal blockade and the necessity for this legal blockade is in nowise affected by the interposition of a neutral port for the 88 Holland, Prize Law, §133; United States Naval Code, Art. 42; Taylor, Int. Law, p. 769; Oppenheim, Int. Law, vol. ii, p. 413; Bulmerincq, Revue de Droit Int., tom. x, p. 240; the Betsy, 1 C. Rob. 34. 8 Calvo, Le Droit Int., tom. v, §2846, et seq; Pistoye & Duverdy, Traité des Prises Maritimes, tom. i, p. 370. 90 Bonfils, Manuel de droit Int. public (4 ed.), §1665; De Boeck, De la Propriété Privée, §175; Geffcken, Heffter, Le droit Int. (4th ed. French), p. 379, note 9; Depuis, Le Droit de la Guerre Maritime, §194-5; Pillet, Les Lois Actuelles de la Guerre, $216. 91 Taylor, Int. Law, p. 680. The ship cannot be admitted to even approach the blockaded port for the purpose of inquiry. The Irene, 5 C. Rob. 390. For an extreme application of this principle, see the Adula, 176 U. S. 361, and the comments of the defeated counsel thereon in report of the Universal Congress of Lawyers and Jurists, 1904, pp. 248-250. purpose of deception or convenience. The legal blockade must exist whether the ship is captured while on a direct or circuitous voyage to the blockaded port. It may be unfortunate from the standpoint of jurisprudence that the decisions in the American cases failed to distinguish clearly between the application of the doctrine of continuous voyages to the carriage of contraband goods and the attempt to breach a blockade, but the facts determined the situation and American and English courts deal with cases as they arise upon the facts and are prone to allow abstract principles to take care of themselves. They are practical if not always scientific. The entire coast of the southern states was blockaded and every ship which attempted to carry contraband goods to the confederate ports was necessarily guilty also at some stage of the voyage of an attempt to run the blockade. Under these conditions the ships and cargoes might in some of the cases have been condemned upon either ground. The Dolphin, the Hart and the Bermuda were carrying contraband of war to a belligerent and were liable to condemnation without reference to the additional fact that it was necessary to run the blockade in order to deliver the cargo to the belligerents. The Peterhof and the Springbok were also carrying contraband and the cargoes were condemned and the ships released. As the doctrine of continuous voyages was properly applicable to the carriage of contraband goods the judgments entered in all these cases were correct regardless of the fact that the court included among the reasons for condemnation the additional fact that the vessels were engaged in blockade running. In its present form the doctrine of continuity is applied to the continuous transportation of contraband goods over a previously determined route as well as to the continuous voyage of a ship. It seems to have been developed naturally and logically by the application of well settled rules of law to meet the difficulties arising out of new conditions. CHARLES BURKE ELLIOTT. NOTES ON SOVEREIGNTY IN A STATE1 The following notes aim, in a tentative way, to discuss and analyze the source and nature of sovereignty in its relation to mankind, and to the institutions created and developed as a result of man's desire for social order and peace. The term notes excludes the idea of an exhaustive or comprehensive treatment of sovereignty; the sole purpose in view is to direct attention to the wide-reaching importance of the subject and to suggest a line of thought somewhat different from that usually followed by publicists. In the various systems of philosophical theories of government, which have been given to the world since the human reason was emancipated by the revival of learning, sovereignty, with scarcely an exception has held a prominent place, and upon their conception of it all of the foremost thinkers since that time have rested their philosophic systems. The two great exceptions to this general practice are Montesquieu and Locke. The former neither defines nor treats of sovereignty; and the latter fails even to mention the word. The explanation of this apparently vital omission from their systems may be found in the ethical idealism of these philosophers, who exalted moral obligation to an actual force and gave to man's consciousness of right a determinate authority which is denied by historical experience. They dealt with what they conceived ought to be in human affairs, rather than what really is. The other political philosophers preceding Montesquieu and Locke, such men as Johannes Althusius, Jean Bodin, Suarez, Hobbes and Spinoza, while often intermingling abstract right with strict legality, saw the necessity of recognizing sovereignty as an ever present factor in all phenomena of government, and, therefore, of introducing it into their systems. When Hume by the force of his logic discredited the 1 First Paper. The following works, referred to by author rather than title are: Austin: Principles of Jurisprudence, 5th ed., revised and edited by Robert Campbell, London, 1885. Bluntschli: Theory of the State, 3d ed. Burgess: Political Science and Comparative Constitutional Law, 2 vols. Dunning: History of Political Theories. Lawrence: Principles of International Law. Maine: Early History of Institutions. "contract" theory of the source of governmental power which had swayed philosophic thought for a century and set in motion those doctrines that found fuller expression in the writings of Bentham and Austin, sovereignty again assumed the importance which it had in a measure lost through the influence of Locke and Montesquieu.2 To modern writers upon political philosophy, jurisprudence and law the subject of sovereignty has been one of recognized importance. Indeed, it has been to the great body of philosophic thought for the past three hundred years the persistent force which affects all the political relations of mankind. To the present-day philosopher, it is even more; it is the fundamental authority which controls, restrains and protects man as a member of society. In the advanced state of modern thought, it is irrational to consider origins or to trace the development of political institutions without admitting the existence and constant activity of sovereignty, and its potency in the creation, evolution, and expansion of such institutions. No problem of government can be proposed in which it is not an essential factor. No explanation of such terms as liberty and law satisfies the reason or appeals to man's consciousness of truth which does not introduce, define, and apply sovereignty. The organization of a political society without the operation of sovereignty is as incomprehensible as a creation without a creator, as a thought without the mind from which it sprung. Sovereignty, like that energy which is called electrictity and seems to be omnipresent in nature, permeates every political institution and every social organism, however crude and rudimentary, or however complex and highly developed they may be. Before entering upon an analysis of the subject it is needful to define sovereignty as well as certain other terms which will be used. Definition is always difficult and often unsatisfactory. So much depends upon how a word is used that it is not uncommon to find a course of reasoning and even an entire system of philosophy turn upon the meaning of a single word. To anyone, who appreciates the value of accurate definition and the liability to err through an incomplete grasp of the It is true that Austin relegated the discussion of it to the closing chapters of his work on the Province of Jurisprudence, but for this he is criticised by Sir Henry Maine, who supposes this illogical method to be the result of Austin's antipathy to anything which seemed to be in accord with Blackstone. |