from entering into combinations in restraint of trade. The function of the State to interfere to maintain the ordinary processes of competition from such attack cannot be denied. It is, however, at present, not constitutional to prohibit an individual from acquiring such property as he will for any purpose that he pleases. The difference between these two things arises from the greater potentiality of the combination for the disruption of the industrial order. This is the result of United States v. Trans-Missouri Freight Association, United States v. Fruit Traffic Association, Addystone Pipe Company v. United States and Northern Securities Company . United States. In the second place, Federal legislation may interfere in all business operations that affect interstate commerce in any direct way, and confederacy to raise prices or to divide markets is within this. On the other hand, the Federal Government may not interfere to regulate the conduct of business operations that have no direct effect upon interstate commerce, as the manufacture of commodities or the wages of laborers. Upon that point United States v. E. C. Knight and Hopkins v. United States are to be compared with Addystone Pipe and Steel Company v. United States, and Northern Securities Company v. United States. Third, all combinations of every sort are within the prohibition, whether in the form of pools, or trusts, or holding corporations, or other device. If the fact of existing conspiracy be established, it is enough. The great question still remains unsettled whether the single corporation which buys outright the properties of former companies with intent to monopolize, is subject to dissolution. The case of the Northern Securities Company v. United States is more nearly that than is the case of Montague v. Lowry; and obviously the law has gone far beyond United States v. Trans-Missouri Freight Association and Addystone Pipe and Steel Company v. United States in that respect. There is still the conspicuous distinction. that in the case of the holding corporation, a combination of existent corporations remains in existence defying the law; while in the case of the single corporation it is difficult to find a continuing combination against the law after the transaction is complete. As a last point, it is to be remarked again, that by the opinion of five justices at least, the prohibition may extend only against unreasonable restraint of trade. To sum the matter up, the present anti-trust law is now heid remedial, not substantial in its provisions. What is a combination in restraint of trade, or to monopolize it, remains a common law question; the statute simply provides effective Federal procedure-the injunction and the indictment. Without doubt this is the most important result of the conflict of the opinions in the Merger Case. By this alone a great advance is to be marked from United States V. Trans-Missouri Freight Association to Northern Securities Company v. United States. The portentous thing in all of these decisions is the force of the Federal Government. Upon the whole, one feels the conviction that there is power enough in the Federal Government to deal with the trust problem. It will be well if that proves to be the outcome. What the situation requires is uniform regulation. This it can have alone from the general government. It means perpetual anarchy for the industrial situation unless the artificial lines of the States be ignored and the commercial interests of the country be treated as a whole. The fate of the nation must be entrusted to the national government. Concessions may be made by the majority judges to the minority judges in all but this. T THE NEGRO LAWYER. BY WILLIAM TYREE. HE acuteness of the negro lawyer in the New South-for he is distinctly a product of the New South-and his keen. insight into human nature, especially that of the white man, is well illustrated by the following incident: In one of our Southern cities a warrant had been sworn out against a negro girl who had served in her young mistress' family as her maid, for stealing a very handsome evening dress which had only been worn a very few times and which the girl greatly admired. The girl was indicted, and in due course of time the case came to the City Court for trial. There happened to be in the city a negro attorney who was recognized by both white and colored citizens as an exceptionally bright negro, and him the girl retained as counsel. As the day of the trial approached he was asked by many of his white friends if he would not prefer a jury composed of both white and colored men to sit upon the case, and to them all he gave the same answer, that he wanted a jury made up of white men entirely, influential citizens, and, if possible, former slave owners. When the evidence had gone to the jury, and a verdict of guilty seemed inevitable, the attorney for the accused arose, 'mid perfect silence, and addressed the Court as follows: "May it please your Honor and gent'men of de jury," and he leaned slightly over the desk in front of him toward the twelve men who sat opposite. "I propose to show you dat dis gal had no intention whatever of stealin' dis dress. While we admit dat she was found wid dis dress in her possession, she did not intend to steal dis dress. men, de circumstances are dese. Gent'Dis gal was invited to a party, and she had no party dress to wear; she knew dat her young mistiss had a wardrobe full of dresses, and she thought it would be no harm fur her to go to dat wardrobe and teck down one of them dresses and wear it to de party, intending to bring dat dress back in de mornin,' after de party; bresh it nicely and hang it back in de wardrobe whar it belonged, jest as if it had never been tecken out of thar; and her young mistiss would know nothin' 'bout it. But unfortunately, gent'men, dis culled gal was belated in gettin' home from de party, and when she walked in in de mornin', her young mistiss was up and caught her wid de dress on. "Now, gent'men, if dis gal had not been belated, as I have stated, de dress would have been back in its place and nobody would have been hurt. Now I ask you gent'men of de jury, as I know each and ev'y one of you has owned niggers, ef you haven't had, at some time durin' your life, your bodyservant teck out of you' wardrobe or trunk, some of you' clothes and wear dem clothes off and return dem clothes to their place. Gent'men, you all never considered dat stealin', and I am satisfied, gent'men of de jury, you don't believe dat dis heah gal,” and he turned around to his client, "intended to steal dat dress. "In view of the facts, gent'men, as I have stated dem I leave dis case in your hands, and believe dat your verdict will be one of acquittal for de accused." The negro sat down amid much laughter. In a few minutes the jury filed into the courtroom, the foreman pronouncing the verdict: "After considering all the evidence in the case, we find the accused not guilty." SOME QUESTIONS OF INTERNATIONAL LAW ARISING FROM THE RUSSO-JAPANESE WAR. T I. Failure to Declare War and Alleged Violation of Korean Neutrality. BY AMOS S. HERSHEY, Associate Professor of European History and Politics, Indiana University. HE present Russo-Japanese War promises to present an exceptionally interesting and important field for the application of certain principles of International Law, more especially for some of those modern rules governing the rights and duties of neutral States and individuals1 which are of comparatively recent origin and to the growth of which the United States has so largely contributed. Certain of these rules or customs may be said to be still in process of formation, or have not as yet been fully established by the general practice of nations; others are perhaps no longer observed, and are therefore of doubtful or decaying validity. International Law is in a state of constant growth as well as of decay; for its rules are the result of international practice which, although based upon fundamental principles, varies in different times and under different circumstances. The present war may serve either to strengthen such customs as are in a stage of formation or of imperfect development on the one hand, or to weaken such as are in a state of decay on the other. These introductory remarks may perhaps serve as a sufficient apology for a series of articles which aim to deal with certain questions suggested by the present struggle in the Far East, from the standpoint of International Law. War is an abnormal relation between individuals as well as between States, and its outbreak brings into existence an entirely. A number of nice and delicate questions relating to the laws and principles of neutrality have, in fact, already arisen at the present writing. Some at least of these will be discussed in later articles. new set of rules which regulate the rights and duties of neutral States and individuals in respect to belligerent States and individuais, as well as the relations of the belligerents with one another, and which largely supplement or supplant those rights and obligations already in existence. In view of this fact, it becomes extremely important to fix upon a definite date for the beginning of these new and abnormal relations between neutrals and belligerents on the one hand and the two or more belligerents on the other. A majority of the more recent authorities2 on International Law hold that between belligerents a formal notice of intention or a declaration of war is no longer necessary prior or preliminary to the outbreak of hostilities. "An act of hostility, unless it be done in the urgency of self-preservation or by way of reprisal, is in itself a full declaration of intention; any sort of previous declaration therefore is an empty formality unless an enemy must be given time and opportunity 2 A majority of the older authorities insisted upon the necessity of a declaration in some form. They were doubtless influenced by traditional views or customs which had their origin in the fetial law of the Romans or in the chivalry and ceremonies of the Middle Ages. The Romans, e. g., were very strict in their observance of certain formalities connected with the declaration of war, and they largely measured the justice or the injustice of a war by the strictness with which these formalities had been observed. For a very extensive citation of the older authorities and historical examples, see Hall, Treatise on International Law (3d ed.) pp. 37679 and notes. Especially interesting is the citation from Burlamqui (note on p. 379), who naively says that "an enemy ought not to be attacked immediately after declaration of war, 'otherwise the declaration would only be a vain ceremony." This is a reductio ad absurdum of the view that a declaration of war is necessary. to put himself in a state of defence, and it is needless to say that no one asserts such quixotism to be obligatory." The date of the first actual or pronounced hostilities is, in fact, a better criterion of the commencement of a war than the date of formal declaration; for the declaration may have been preceded by acts of hostility, and in such cases difficult questions are bound to arise which may lead to great uncertainty and much long and useless controversy.2 Although the modern authorities are still somewhat divided on this question, the gen 'Hall, op. cit. p. 374. 2 "In the eighteenth century declarations were frequently published several months after letters of marque had been granted, after general reprisals had been ordered, and even after battles had been fought; and disputes in consequence took place as to whether war had begun independently of the declaration, or from the date of the declaration, or in consequence of the declaration, but so as to date, when once declared, retrospectively to the time of the first hostilities. As the legitimacy of the appropriation of private property depends upon the existence of a state of war, it is evident that conflicts of this nature were extremely embarrassing and, where different theories were in play, were altogether insoluble. To take the state of war on the other hand as dating from the first act of hostility, only leads to the inconvenience that in certain case:, as for example of intervention, a state of war may be legally set up through the commission of acts of hostility, which it may afterwards appear that the nation affected does not intend to resent by war; and, as in such cases the nation doing hostile acts can always refrain from the capture of private property until the question of peace or war is decided, the practical inconvenience is small." Hall, op. cit. p. 375. 3 For more or less extensive citations of the modern authorities, see Hall op. cit. pp. 379-81 and note on p. 380; Calvo, IV, § 1906; PradierFodere, VI, § 2673. The great French publicist, Pradier-Fodere (VI, § 2677) is of the opinion that "if declaration is not an essential condition of a regular war, it is, at least, a useful formality which States ought not to omit." The great Russian publicist. De Martens (III, 205), thinks that "neither proclamation nor diplomatic notice are obligatory, provided that the state of relations is such that hostilities will not be a surprise. Hostilities which constitute a surprise, he characterizes as brigandage and piracy.' German Holzendorff (Handbuch, IV, §§ 82-84) holds neither declaration nor manifesto to be necessary, although he thinks that "a belligerent ought to give notice of some sort if he can do so consistently with his political interest and his military aims." The last two citations are given by Hall, note on p. 380. The eral practice of nations, at least since the sixteenth century, shows conclusively that declarations of war prior to the outbreak of histilities have been comparatively rare and altogether exceptional. So far as the writer is aware, the opinion of judges of prize courts (at least in the United States and England), who have been called upon to pass upon the validity of captures made prior to the declaration of war, is unanimous that war may exist without a declaration." 4 "Most of the wars of the seventeenth century began without declaration, though in some cases declarations were issued during their continuance." Hall, note on p. 377. "The nearer we approach to modern times the rarer do formal declarations become. There have been only eleven of them between civilized States since 1700, whereas the present century has seen over sixty wars or acts of reprisal begun without formal notice to the power attacked." Lawrence, p. 300. In a compilation of cases of hostilities extending from 1700 to the present time, Colonel Maurice of the British army, found but II out of 118 instances in which a declaration of war precedea hostilities. Snow Manual, p. 78. In most cases declarations have, however, followed the outbreak of hostilities. For extensive citations of historical examples, see Hall, cited above; Phillimore, Commentaries, III, Pt. IX, c. 5; Calvo, IV, § 1908; Rivier, II, pp. 223-28. For an abstract of cases in which hostilities have occurred between civilized powers prior to declaration from 1700 to 1870, see Maurice. Hostilities without Declaration of War (1882), and a review of this work by Prof. Holland in the Revue de Droit International, 1885, No. 6. pp. 63-65. See also Des Hostilities sans Declaration de Guerre, by M. Feraud-Giraud in the same review for 1885. No. 1, pp. 19ff. See also Owen, Declaration of War, 1899. It should perhaps be noted that recent wars seem to have witnessed a return to the older practice. e. g., those of 1870 and 1877. The practical futility of the declaration of 1877 is, however. shown by the fact that Turkish territory was invaded by Russia on the day of her declaration of war on April 24, 1877. In the ChinaJapanese war of 1804-5, hostilities were begun before the declaration, and in our own recent war with Spain war was formally declared by Congress on April 25. 1898, after the capture of several Spanish vessels and the blockade of the Cuban ports on the 22nd of April. The existence of hostilities was dated back to the 21st of April by the Declaration itself. 5 See, e. g., the opinion of Lord Stowell in I Dodson 247; of Sir W. Scott in the case of the Eliza Ann, I Dodson 244: The U. S. Supreme Court in Bas v. Tingy, 4 Dallas 37. and in The Prize Cases, 2 Black. 635: Lord Chief Justice Mellish in the Teutonia, 4 Privy Council Reports 171; and J. Locke in the Buena Ventura and Panama, 87 Fed. Rep. 927. The utmost that nations in a state of peace have a right to demand is that they shall not be suddenly surprised or treacherously attacked without any intimation or warning whatsoever. But "the use of a declaration does not exclude surprise"; it only "provides that notice shall be served an infinitesimal space of time before a blow is struck. . . . The truth is that no forms give security against disloyal conduct, and that when no disloyalty occurs States always sufficiently well know when they stand on the brink of war." War is usually preceded by a long period of negotiation which generally, although not necessarily, terminates in an ultimatum. Moreover, with modern facilities for telegraphic communication, a complete surprise would be well-nigh impossible. The mere recall and dismissal of ambassadors or ministers or, in other words, the breaking off of diplomatic relations, is not and ought not in itself to be regarded as equivalent to a declaration of a state of war;2 but such acts indicate that the relations between the States in question are very much strained or altered, and they often form a sort of transition from a state of peace to that of war. They are generally preceded by an ultimatum or final note which usually prescribes a definite time within which a favorable answer must be returned in order to prevent a resort to force. In such cases the ultimatum amounts to a conditional declaration of war, i. e., conditional upon the rejection of the terms proposed or failure to accept them within the time specified. For the convenience of neutrals, as also to warn citizens or subjects of the belligerent State, it is however customary, in lieu of or in addition to a declaration, to issue a pro Hall, p. 381. See also Lawrence, pp. 301-02; Woolsey (6th ed.) pp. 189-90; Walker, The Science of International Law, p. 242; Pradier-Fodere, VI. § 2676; Rivier, II. p. 222; Funck-Bretanc et Sorel, Precis, p. 245; De Martens, Traite, III, 205. 2 Pradier-Fodere, VI. § 2678; Rivier, 711, p. 220; Funck-Bretano et Sorel, p. 243. clamation or manifesto which usually sets forth the causes or motives of the war, but even these are sometimes omitted. The foregoing rules or customs are so well known to students of International Law and their practice is so generally observed by modern States that it might perhaps be deemed unnecessary to restate them here were it not for the charges of "treachery," "piracy," "bad faith," and "breach of International Law" which have been made in certain quarters-high as well as low-against Japan in consequence of the Japanese attack upon the Russian fleets at Chemulpo and Port Arthur on February 8th prior to the formal declaration of war by Japan against Russia on February 10th. Not only have these charges been noised abroad by the apparently unanimous voice of the French as well as the Russian press, but the same opinion is said to be held by leading authorities on International Law in Paris and St. Petersburg. Most serious of all, the Czar himself is said to have made himself the mouthpiece of these charges in public as well as private utterances, and they have been presented to the whole world through the medium of the Czar's formal Manifesto of February 10th and Count Lamsdoff's Circular Note to the Powers of February 221.3 A brief review of the facts ought to convince the most prejudiced or the most skeptical that the conduct of Japan in this matter was entirely correct. It is not our intention to enter upon a discussion of the causes of this war with reference to their justice or injustice; for International Law as such is indifferent to causes-it does not consider the justice or injustice of a war. As far as International Law is concerned, all wars are equally just or unjust; or, more properly speaking, they are neither. International Law merely takes cognizance of the 3 For these documents, see London Times (weekly ed.) for February 12th and February 26, 1904. |