the property taken,"29 and that property thus taken should be restored after reparation has been made. "The objection sometimes made to reprisals, that they are applicable only to the weaker Powers, since a strong Power would at once treat them as acts of war, is indeed the strongest recommendation of this mode of obtaining redress. To localize hostile pressure as far as possible, and to give it such a character as shall restrict its incidence to the peccant state, is surely in the interest of the general good."30

A favorite form of reprisal has in recent times been that of pacific blockade. It consists in the so-called "pacific" or "peaceful" blockade of a portion or the whole of the coast of the offending state. Authorities on international law are divided31 in their opinions as to the legality, justice and real character of pacific blockades; but there have been at least a dozen instances32 of its application since the date of its first appearance in 1827, and they form a part at least of the practice, if not of the theory, of international law. It should, however, be observed that neutrals or third states need not recognize them as binding upon themselves, in which case it must be admitted that they may remain largely ineffective.33

”T. E. Holland in a letter to the London Times (see weekly edition) for December 26, 1902.

30

31

See Holland, cited above.

As more or less in favor of pacific blockade, we may cite Fiore, Rolin-Jacquemyns, Pradier-Fodéré, Heffter, Calvo, Couchy, Perels, Bulmerincq and Lawrence; as opposed Hautefeuille, Pistoye, et Duverdy, Fauchille, Geffcken, Bluntschli, De Martens, Hall and Woolsey.

On the one side it is urged that pacific blockades are humane, that they limit or localize the area and violence of the struggle, that they do not necessarily lead to war, and that, whether we like them or not, they have been introduced into the practice of the law of nations. On the other hand, it is urged that they are based upon the dictates of interest rather than upon those of humanity, that they are only resorted to by stronger against weaker nations, that they are apt to lead to war, and that they impose onerous duties upon third powers or, if not enforced against these, are illusory and ineffective.

For a list, see Calvo, III, liv. 19, § 6, pp. 534 ff.

"The pacific blockade of the coast of Greece in 1886 was a model in this respect. Only the Greek flag was excluded. The pacific blockade of Crete in 1897 unfortunately marked a return to the older and

As has been said, no sound objection can possibly be made either against the method of reprisals in general or against the specific forms of reprisal adopted by the allies, viz: the seizure and sequestration of the Venezuelan gunboats and the "pacific" blockade of certain portions of the Venezuelan coast. But no sooner had the small and insignificant Venezuelan navy been seized than its German captors were guilty of an act which amounted to an act of war and which was a distinct violation of the law of reprisal, viz: the sinking of several Venezuelan gunboats.34 This act of warfare was soon followed by the bombardment of Puerto Cabello under circumstances which could hardly be justified even during war.35

It is therefore scarcely a matter for surprise that Premier Balfour should have admitted to Parliament on December

wholly indefensible practice of interfering with the commerce of third states. See Lawrence, Principles of International Law, App. IV.

The view taken above is in accordance with the position of the United States and, we believe, is in agreement with the usual practice of Great Britain as well, although Germany apparently assumes a different attitude towards third powers. The instructions to naval officers, issued by the British Admiralty (see Par. "Blue Book," No. 183, pp. 170-171), on December 11, 1902, show, however, that Great Britain intended to follow the German view in this instance. The blockade is to be enforced against third powers as well as against Venezuela. The United States showed her attitude by refusing to recognize it. Our view has the saction of the Institut de Droit International, which, after having declared against pacific blockades in 1874, declared itself in 1887 in favor of permitting them under the following conditions: (1) that "vessels with a foreign flag may be permitted to enter freely in spite of the blockade; (2) the pacific blockade must be officially declared and notified, and maintained by a sufficient force; (3) the vessels of the blockaded power which does not respect such a blockade may be sequestered. The blockade being ended, they should be restored together with their cargoes to their owners without having been injured in any respect." See Annuaire de l'Institut de Droit International, 1887-88, pp. 300-301.

"In German official circles this act was explained on the following contradictory grounds: (1) that the vessels were old and unseaworthy; (2) that it was necessary in order to prevent them from falling into the hands of the enemy.

This bombardment was due to an insult to the British flag by a mob. The Venezuelan government seems to have been given insufficient time for the requisite apology or reparation.

17 that these were not methods of peaceful coercion, but acts of war.36 There followed the official declaration of a war blockade on December 20. The seizure of the Venezuelan navy and the pacific blockade of the Venezuelan ports, intended as mere acts of reprisal, had, owing to the hasty and ill-considered acts of the allies, more especially of Germany, ripened into actual war, and this, after overtures for peace had been made and Venezuela had practically surrendered to the Allied Powers.

Another incident of the war which has attracted much adverse criticism was the shelling of the fort of San Carlos by the "Panther" and several other German warships on January 21 and 22, 1903, in which a number of non-combatants as well as soldiers were killed and wounded. This bombardment was made while negotiations were pending and it was variously explained by German officials and commanders as due to a desire on their part to make the blockade more effective by seeking to prevent the importation of contraband, more particularly of coffee, into Venezuela via Colombia, and to chastise the insolence of the Venezuelans and their exaltation over the affair of January 17, when the "Panther" was successfully turned back after a vain attempt to enter Lake Maracaibo,37

We have here a bundle of contradictions as to the facts, but the vital facts in the controversy, viz: that it was the movements of the "Panther" which provoked the fort of San Carlos to action, and that the bombardment was instituted during a critical period in the conduct of negotiations, are well established. These movements the "Panther" had a distinct legal right to make, from whatever motive, under the laws of warfare; but they constituted an advance into the enemy's country during a period in which

36

It is, however, to be regretted that the Prime Minister allowed himself to be drawn into a declaration against the validity of pacific blockades.

"There are also conflicting statements as to the original motive of the "Panther" in entering the lake. By some she is said to have entered for the purpose of seeking refuge from a storm; by others in order to attack a Venezuelan gunboat. The true reason is probably that given by German officials, viz: that she was engaged in an attempt to make the blockade more effective.

hostilities should have been suspended, i. e., pending the conduct of negotiations, although no truce had formally been declared.

Another interesting and, as it seems, an altogether novel feature in this controversy is the claim to preferential treatment made by the allies over against the states, notably France, which had effected settlements with Venezuela without resorting to coercion. Such preferential treatment, while perhaps not directly contrary to international law, would undoubtedly, as Minister Bowen is reported to have intimated to the allies, be offensive to modern civilization and contrary to modern conceptions of international morality. It would be an incentive to forcible and warlike methods of coercion in the collection of debts, rather than to a peaceful settlement of claims of this character.38 We await the decision of the Hague Tribunal on this point with the utmost confidence in its wisdom and impartial judgment. Amos S. Hershey.

"It has, however, been urged on the other side that "these creditors of Venezuela, who, having taken no part in the heat and burden of the day, desire to share equally with those who have spent treasure and perhaps blood, in reducing President Castro to order" should not participate in the division of the fruits of conquest. London Times (weekly edition) for February 6, 1903.

The case seems to be somewhat analogous to proceedings in involuntary bankruptcy. In such a case the creditors who have instituted legal proceedings are not preferred to those who enter their claims afterwards. All stand upon an equal footing before the law.

EX PACTO ACTIO NON NASCITUR.

Ex nudo pacto inter cives Romanos actio non nascitur.-Paul. Sent. 2, 14, I.

Nuda pactio obligationem non parit.—Ulp. in Dig. 2, 14, 7, 4.

The history of this rule is the history of Roman contracts. Yet a few of the salient points in the story may be summarily sketched, for through them runs an interesting development of law parallel to that affecting the rule that the slave had no personality,1 the rule that a wife held toward husband the legal relation of daughter,2 and to the development of the informal modes of acquiring property as equal to the formal modes.

The modern civilian sees no line of cleavage between pact, or convention, and contract; for the former, speaking generally, is sanctioned by an action at law. The meeting of the minds of the parties imposes the obligation. But the law of Rome had a very different theory. We cite the last two of the great classical jurists. Ulpian says: “A simple pact creates no obligation." Paul says: "No right of action at law arises from a mere pact." Ample testimony to show that the Roman rule, that a mere convention could not create an obligation, ground an action, was never abrogated. How, then, was it treated?

The Roman theory held that for a convention to become binding in law it must be clothed with such a juristic form as would transform it into a contract, would sanction it by an action at law. The early law contained enough such juristic forms to show a pretty complete system. Even the extant fragments of the Twelve Tables mention3 an old contract "with the bronze and the scales," the nexum, showing the quaint formalities of the symbolical sale for “spot cash," with its "scale bearer" and the five witnesses. So

1 See the writer's paper on Freedom and Slavery in Roman Law, AM. LAW REGISTER, Vol. 40 (N. S.), No. 11, page 637 ff.

'See the writer's paper on Some Viewpoints of Roman Law, etc., AM. LAW REGISTER, Vol. 41 (N. S.), No. 2, page 98.

'Cum nexum faciet mancipiumque, uti lingua nuncupassit ita ius esto.