possible their normal commercial relations with the belligerents. The sanction of general public opinion, in so far as it existed at all, was in the nature of a post-mortem verdict.

A system such as this, which made each state responsible for its own security and gave it no assurance against attack except in so far as it had taken personal measures of self-defense, had the natural result of bringing about a competition in armaments which was in its turn provocative of suspicion and discord. States too little confident of the adequacy of their own resources for individual self-defense formed alliances for mutual defense, and these alliances were in turn met by counter-alliances of other Powers, which saw in the first alliance a menace to their safety. The highest ideal of nineteenth century statesmanship was apparently that of a balance of power, a political equilibrium of opposing groups. If peace was to be maintained it must be maintained by preventing any Power or group of Powers from becoming so strong as to be able to resort to war without at least doubtful prospect of success.

A further consequence of the system of individual self-help was that it became practically impossible to distinguish between offensive and defensive wars. Clearly the situation might arise where it would become necessary for a state to anticipate a possible future attack under less favorable circumstances by itself attacking forthwith under more favorable circumstances. In such a case the question of the defensive character of the war would depend upon a variety of intangible issues in respect to which each government would have little difficulty in persuading its own people that the situation called for preventive measures. As a matter of fact, during the decades preceding the World War each of the Great Powers proclaimed on every suitable occasion that its armaments, whether land or naval, were purely for defensive purposes.

The first "turning-point in history" came with the adoption of Articles X, XI, and XVI of the Covenant of the League of Nations. Here were articles of international agreement purporting to create a collective responsibility of all the members of the League for the protection of each of them. Henceforth neutrality was to be at an end, and any war or threat of war was to be a matter of concern to the whole League whether particular members were immediately concerned or not. Moreover, a declaration of war by any member of the League in violation of its obligations under the Covenant was to be regarded as an act of war against all the other members of the League, and appropriate remedies, economic and military, were to be taken by the several members in coöperation.

The legal significance of these articles was, of course, obvious to all the world. The generalizations in which they were phrased, not involving specific obligations, did not make them any the less significant. It soon became evident, however, that the new system had been set up under adverse conditions. With Russia an exile from the nations, with Germany and her

allies under pains and penalties, with new states coming unto existence and old boundary lines shifting, with Turkey and Greece at war and unknown dangers threatening in the Far East, it was too much to hope that the inner circle of the Great Powers, upon whom the effective operation of the new system naturally depended, could be counted upon to give more than formal and conditional acceptance to the far-reaching obligations laid down. The United States Government, after having taken the initiative in establishing the new system, underwent a change of party control and refused to become a partner in the undertaking.

From 1919 to 1925 the three most fundamental articles of the Covenant of the League remained practically a dead letter. The limited membership of the Council made action under the Covenant of the League impossible without the coöperation of the Great Powers represented upon it, and this could not be obtained until pending political controversies were settled. In the meantime an effort was made at Geneva in 1924 to recast the principles embodied in Articles X, XI, and XVI of the Covenant and to tie them up with more comprehensive obligations in respect to the arbitration of disputes. The result was the Protocol for Mutual Security, which was duly signed and submitted to the Powers for ratification. But once again the proposal to unite all nations in a general agreement for mutual protection and security failed to receive adequate support, even though the obligation to take part in the application of economic and military sanctions was modified so as to take into account the geographical situation and peculiar political institutions of the individual states. Fundamentally correct as was the principle involved in the Protocol, it appeared that the methods resorted to for its application were not yet feasible.

With the probable failure of the Protocol facing the Great Powers and with the growing realization that the ideal of coöperative defense was the right one if only more satisfactory methods of attaining it could be devised, the suggestion came from Germany that the smaller group of Powers whose interests were most vitally concerned should meet together and attempt to take action upon their own account. Out of this suggestion came in time the Locarno Conference, which met on October 5th and closed its sessions on October 16th with the signing of five main agreements. Speaking in terms of law, these agreements constitute an undertaking on the part of an inner circle of five Powers to put into effect the principle of collective responsibility for mutual protection which was involved in Articles X, XI, and XVI of the Covenant of the League of Nations, but which had under the conditions prevailing failed to command the practical support of the wider circle of states which had pledged themselves to its general obligations. The underlying conception of coöperative action was the same in both cases. But the parties to the Locarno agreements were those more immediately concerned in their successful operation, and they were therefore able to commit themselves to more specific obligations. First in order comes the general pledge to keep the

peace by mutual respect on the part of each state for the independence and territorial integrity of the others; next comes the pledge of mutual aid in the event of an attack by any one of their group upon another; lastly, a comprehensive and unqualified obligation, to which two additional Powers were parties, to submit all disputes to arbitration. It may be observed that while Germany was ready, as proof of the sincerity of her desire for a more stable international order, to guarantee to France the present boundary between the two countries, she was unwilling to give a similar guarantee to Poland in respect to her eastern boundary. Germany does, however, agree not to resort to force to change this boundary, so that her reservation amounts to no more than a claim to appeal at some future time to the processes of direct negotiation or of friendly intervention on the part of the public opinion of the nations at large.

"The old order changeth, giving place to new." Whether the new order of collective action for mutual protection shall take the form of further agreements, such as those concluded at Locarno, between other states whose inner circle constitutes a possible storm center, as in the Balkan peninsula, or whether, should the Locarno agreements succeed in their purpose and bring about an effective coöperation on the part of the leading states, it may not then be feasible to bring into play the original obligations of the Covenant of the League or some other agreement to which all the nations shall be parties, remains a question of practical politics. At any rate, there is nothing either in law or in politics to prevent the two sets of obligations from operating side by side, the one or the other being called up as the emergency may require. In both cases there is now a possibility on the one hand of effective disarmament and on the other hand of obligatory arbitration without restrictions. For these two basic conditions of a true legal system have necessarily been held up until the primary legal problem of collective action for mutual security should be solved.

C. G. FENWICK.

RUM SHIP SEIZURES UNDER THE RECENT TREATIES

Prohibition and rum ships, rum ships and marginal seas, marginal seas and the three-mile limit, the twelve-mile limit, or the one-hour sailing limit of recent treaties-so runs the sequence. Whatever else the American experiment with prohibition may have accomplished, it has certainly focused attention upon the problems of jurisdiction over foreign ships in the marginal seas as no other piece of national legislation has ever done.

Rum ship seizures give rise to two kinds of proceeding: first, criminal proceedings prosecuted against the responsible persons to inflict penalties for violations of the local law; and second, forfeiture proceedings directed against the ships themselves or their cargoes to impose forfeitures for violations of the local law. The nature of the criminal proceeding is well understood and requires no further comment. The forfeiture proceeding is more perplexing.

It has been described by a recent writer as "a civil action with certain criminal aspects" and the same writer has suggested that in principle it ought to be regarded as essentially a criminal action.1

Whether the proceeding be criminal to inflict penalties upon a person, or civil to secure the forfeiture of a thing, there are always two primary questions to be considered in the rum ship cases involving foreign craft. The first is the substantive question-Has there been a violation of the local law? Unless there has been a violation of the local law, obviously there is no occasion for proceeding further. The second is the jurisdictional question-Has the court obtained jurisdiction over the person of the accused or the thing proceeded against? Unless there is some adequate basis for jurisdiction, the proceeding may fail although a violation of the local law be proved to the satisfaction of the court.

The answer to the substantive question-Has there been a violation of the local law?-depends chiefly, of course, upon the nature of the acts committed. So far as this phase of the inquiry may be concerned, proceedings against foreign rum runners or their ships are not especially unique. But the answer depends also upon the scope of the local law. In this respect the cases arising from seizures of foreign rum ships have raised some novel and exceedingly interesting questions.

The Supreme Court of the United States has held in some notable cases that the prohibition amendment to the Constitution and the statutes enacted to give effect thereto are operative in all territorial waters including the marginal seas to the three-mile limit. There are certain provisions in the customs laws of the United States requiring the exhibition of accurate manifests, forbidding the unloading of cargoes without permission, and the like, which are expressly made operative in all marginal waters out to the twelvemile limit. And there is at least one provision in the United States Criminal Code-section 332 providing that whoever aids or abets in the commission of an offence shall be regarded as a principal1—which may even operate to make acts criminal although committed by foreigners upon the high seas beyond all territorial or jurisdictional boundaries."

136 Harvard Law Review, 609, 612.

› Grogan v. Walker & Sons (1922), 259 U. S. 80; Cunard Steamship Co. v. Mellon (1923), 262 U. S. 100. See comment in this JOURNAL, Vol. 17, p. 504, and in 21 Michigan Law Review, 911.

3 See 9 Geo. II. c. 35, §§ 22, 23; Act of 1790, §§ 9, 10, 11, 12, in 1 Stat. L. 145, 155, 156, 157; Act of 1799, §§ 23, 24, 25, 26, in 1 Stat. L. 627, 644, 646, 647; Act of 1866, § 25, in 14 Stat. L. 178, 184; U. S. Rev. St., §§ 2806, 2809, 2811, 2814; Act of 1790, §§ 13, 14, in 1 Stat. L. 145, 157, 158; Act of 1799, §§ 27, 28, in 1 Stat. L. 627, 648; The Schooner Betsy (1818), 1 Mason, 353; U. S. Rev. St., §§ 2867, 2868; Act of 1922, §§ 586, 587, in 42 Stat. L. 858, 980, 981; Act of 1790, § 31, in 1 Stat. L. 145, 164; Act of 1799, § 54, in 1 Stat. L. 627, 668; U. S. Rev. St., § 3067; Act of 1922, § 581, in 42 Stat. L. 858, 979.

435 Stat. L. 1152.

'See Latham v. United States (1924), 2 F. (2d), 208, 210; United States v. Ford (1925), 3 F. (2d), 643, 647.

Have the recent treaties between the United States and other maritime countries to aid in preventing the smuggling of liquor into the United States had the effect of projecting United States laws over still wider areas of the marginal seas? Most of these treaties begin, it will be recalled, with an article reaffirming "the principle that three marine miles extending from the coastline outwards and measured from low-water mark constitute the proper limits of territorial waters." Then follows the second and principal article in which the other contracting state agrees to "raise no objection" to searches and seizures of private vessels under its flag by United States authorities, outside United States territorial waters, whenever there is "reasonable cause for belief that the vessel has committed or is committing or attempting to commit an offense against the laws of the United States, its territory or possessions prohibiting the importation of alcoholic beverages." The rights conferred by this article are not to be exercised at a greater distance from the coast of the United States than “can be traversed in one hour by the vessel suspected of endeavoring to commit the offense." If the liquor is intended to be conveyed to the United States by another vessel than the one boarded and searched, "it shall be the speed of such other vessel and not the speed of the vessel boarded, which shall determine the distance from the coast at which the right under this article can be exercised."s Do these treaties operate, so far as the ships and subjects of the other contracting countries may be concerned, to extend certain of the inhibitions, penalties, and forfeitures prescribed in the laws of the United States beyond the three-mile line, beyond even the twelve-mile line, to the rather ill-defined line which bounds the one-hour zone? On the one hand, it may be urged that treaties are not the usual means of enacting new penal laws or of extending existing penal laws to new areas, and that paragraph one of article two in each of these treaties begins with an agreement that the government of the other contracting state will "raise no objection" to the boarding of private vessels under its flag or to searches when preliminary enquiries and examination show "a reasonable ground for suspicion." The language of paragraph one suggests merely the settlement of a controversy about jurisdiction rather than an extension of law into new zones. On the other hand, article two expressly authorizes searches and seizures not only of ships which have committed or are committing an offense, but also of ships which are "endeavoring to import," "attempting to commit an offense," or "endeavoring to commit" an offense contrary to the laws of the United States prohibiting the importation of liquor. Merely endeavoring to commit an offense fifteen miles from the coast, let us say, was not necessarily an offense prior to the treaties and is not necessarily an offense now unless the treaties have

'Convention between the United States and Great Britain, May 22, 1924, in the Supplement to this JOURNAL, Vol. 18, pp. 127, 128. See comment in this JOURNAL, Vol. 18, p. 301. 'Ibid.