The view expressed by the second group may be shortly described as denying the extra-territorial character of ships, and affirming the existence of an international obligation on naval officers in foreign territorial waters not to afford protection to slaves, but recognizing the practical necessity (which they characterize as a deviation from the "strict theory of international law") of restricting the fulfilment of this obligation to cases where it would not "make British naval officers accessory to acts of cruelty," a limit, it may be observed, which is exceeded by the recommendation in which they concur. The paper of the Lord Chief-Justice, which is of considerable length, examines the question of the extra-territoriality of ships of war with reference to authorities, to abstract principle, and to practical reason.

But notwithstanding the learning and acuteness with which this question is discussed, there is a mode of viewing it which, both in this paper and in that of Mr. Stephen, seems to have been overlooked to an unaccountable degree, or to a degree which would be unaccountable but for the misleading prominence given to such phrases as that which describes a ship of war as being, on the hypothesis of extra-territoriality," to all intents and purposes a portion of the British soil." This is, however, the common fallacy of translating one proposition into another which is not its equivalent. The phrase extra-territoriality signifies an exclusion of the vessel from the territorial jurisdiction, or, to put it in another form, the exclusion from the vessel of the territorial jurisdiction. But this affirmation of exclusion is made to carry with it the intrusion of a different jurisdiction-that is, the jurisdiction "to all intents and purposes" of the State to which the vessel belongs; and because, where that jurisdiction exists as a territorial jurisdiction, it necessarily altogether excludes every other jurisdiction, it is assumed that if extra-territoriality is affirmed with respect to a ship of war, the local jurisdiction is wholly at an end. But the very word itself ought to lead to a contrary conclusion. It implies a claim and right of exemption, not a claim or right of exercising jurisdiction. It is not, for instance, pretended that process from the Courts of the State to which the vessel belongs could be executed on board the vessel, as if it were a part of the territory of the State. Being, then, an exemption, for whose benefit does the exemption exist, or who has a right to make the claim? Clearly those to whom the possession of the vessel is intrusted by the power which commissions it. What then is the nature of the right? A right capable of being exercised by a particular person in a particular place-that is, on board the vessel; a right on the part of the commander of the ship to freedom on board ship for it and all it contains from the local jurisdiction. It is not a sacred quality adhering to the ship, and operative, as it were, by its own force; but a right capable of being exercised by certain persons, and the exercise of which those may waive

who are entitled to claim it. If this view is borne in mind, there is an end to many of the nice questions with which the subject is perplexed in the memoranda of the Lord Chief-Justice and of Mr. Stephen. There is no difficulty about trying an offence committed by natives on board the foreign man-of-war in port; for the only obstacle would consist in the resistance of the commanding officer to allow the criminal to be removed from his ship; and if he waives his privilege, there is nothing to stand in the way of the administration of the local law.

In effect, this is what the view presented in the memorandum of the other group of Commissioners amounts to. They state it as their opinion, "(1) that a commanding officer on board his ship, even when she is lying within the territorial waters of a foreign State, is to be regarded, not as in subjection to the authority and laws of that State, but exclusively as a subject of his own Sovereign, and an officer of his own Government; (2) that the laws of the foreign State cannot be forcibly executed on board unless by his order or permission, as commanding officer." Referring to the testimony of writers on public international law, they say, "Whatever value we may be disposed to assign to testimony of this kind, it is, for the last half-century at least, substantially unanimous. The general practice of Governments, and the general belief or impression current in every naval service, appear to have been in accordance with it. . . . . We do not know of an instance within this period in which a right has been conceded or asserted to take a person or thing from on board a ship of war by legal process without leave of the officer in command, or to hold the officer, or any of those under his command, personally answerable to the local jurisdiction for acts done on board in contravention of a local law." Notwithstanding the disparaging observation of the Lord Chief-Justice on the nature of this testimony, and on the evidence of the existence of this general understanding, which seems to partake rather of the nature of special pleading, we cannot entertain a doubt that, to this extent at least, an extra-territorial character has been for a long period universally allowed to ships of war, and, in a system which rests so almost exclusively, as international law does, upon custom, we can see no reason why such a well-established practice and usage should not have its full effect in creating or evidencing a rule of law. Nor can we see that any of those inconvenient consequences would follow a rule so expressed which the Lord Chief-Justice imagines, but which really only belong to the form in which, under the influence of the fallacy we have before referred to, he represents to himself the extraterritoriality of a ship of war. That such a rule needs to be tempered in its exercise is saying no more than can be said of every law, whether municipal or international. It has been often and truly said that life would be intolerable in any State, and under the best system of law, if extreme rights were universally

asserted. In international law, and especially in those parts of it which confer special privileges, this is still more true; but that can be no reason against the existence of any particular rule; and as even the majority of the Commission would not deny the existence of some privilege appertaining to ships of war, a difficulty must in any case exist.

If this position be admitted, the question is placed without violence or difficulty in the position in which, by a violation of logic, it is, in fact, placed by those who repudiate altogether the notion of extra-territoriality. The question is, for both, In what circumstances can the commander of a ship with propriety interfere (practically speaking) with the operation of the local law?

Here, however, the majority present us with another difficulty growing out of, or closely connected with, their view of the position of a ship of war. For them there exists an absolute international obligation on the naval officers not to contravene, in any way whatever, the local law; and Mr Stephen, who loves to present a proposition in its most violent form, lays it down that they are bound to deliver up "political refugees, the victims of religious persecution, and slaves who have received, or expect to receive, from their owners the treatment which a vicious brute would experience from a cruel master." We see no advantage in stating rules in such a form as to revolt the understanding, and to make it certain they will not be observed, or to compel the introduction of a contradictory rule of action in opposition to the admitted rule. And we should be glad to be informed by those who so sceptically scrutinize the claim of, and testimony for, the extra-territoriality of ships, in what quarter they find authoritatively laid down the proposition thus expressed. For our part we regard as much more reasonably stated the view expressed by the minority:-"It is true as a general proposition that a naval officer, entering with the ship under his command the waters of a friendly State, ought to respect the local laws, and to refrain from lending his assistance to any violation of them," but "the British Government has the right to say, at least, that the authority delegated to its officers shall not be used to do what is plainly inhuman and unjust. This qualification of the general rule is demanded by the national self-respect of every State which commissions a ship of war; and it is consistent with the ordinary principles on which the intercourse of civilized States proceeds. That there is no unqualified obligation to assist or permit on board a ship of war the enforcement of the local law is assumed in the instruction which British naval officers receive with regard to political refugees, and has been assumed in the cases where, before the issue of these instructions, the refusal to give up a refugee has been approved by the British Government." This reasoning appears to us to be just and forcible; and, however it may please a zealous codifier like Mr. Stephen to state a bad law in order that he may have the pleasure of reforming it, we regard it as morė

becoming both a lawyer and a statesman to find, if he can, some mode of expressing the law which shall dispense with the reformer's hand. Such a mode of expression is contained in the opinion of the minority. There is a right in the commander of the ship to exclude all foreign interference from on board; there is no absolute obligation to assist, or, by waiving his privilege, to co-operate, in the execution of the local law; but there is a moral obligation on him not to interfere unduly or unreasonably with its execution, and the question, therefore, in each case is, What is undue or unreasonable interference? The distinction between the various modes and degrees of interference is well sketched in a passage which space does not suffer us to quote.

There remain two questions connected with this subject which are scrutinized with much acuteness by Mr. Stephen; the questions, namely, whether a slave surrendered by a naval officer could, on afterwards escaping to England, maintain an action against him, and the question whether the slave-owner could maintain an action against the captain for refusing to surrender him. In the solution of these questions it must be borne in mind that in an action of tort the defendant must, according to the recent decision in the case of The Moxham, following that of the Privy Council in The Halley, be shown to have committed a wrong both according to the law of the forum, and also according to the law of the country where the act was done. It seems probable that on this ground, which is not adverted to by Mr. Stephen, the slave could not maintain such an action in England. It seems to us certain, though Mr. Stephen appears to be of the contrary opinion, that the master could not. But there is, at any rate, much weight in his suggestion that naval officers are entitled to whatever protection can be given to them by instructions which unequivocably make their acts in affording protection to fugitives acts of State.-Solicitor's Journal.

OFFERS LEFT OPEN-SPECIFIC PERFORMANCE. DICKINSON V. DODDS (34 L. T. REP. N. S. 19; ON APPEAL, id. 607). THE facts in the above case were extremely simple, and are thus set forth in our head note to the case when before Vice-Chancellor Bacon: "Defendant on Wednesday signed and delivered to plaintiff D. a memorandum as follows: I hereby agree to sell to D.' certain freeholds, the whole for the sum of eight hundred pounds.' Then followed a postscript, also signed by the defendant, 'This offer to be left over until Friday, nine o'clock a.m.' On the following day the defendant entered into a contract to sell the property to A. On Friday morning, before nine o'clock, the plaintiff offered the defendant personally a written acceptance, which the defendant

refused to receive, saying that the property was already sold." The plaintiff, who sought to have the above memorandum specifically performed, obtained a decree in his favour, and in a subsequent number of this paper (ante, vol. lx., p. 336), we expressed our concurrence with the decision of the learned Vice-Chancellor, and said, "The only thing that seems to us surprising is that the defendant's case was thought to be even arguable.' This remark was, of course, intended by us to refer to the case viewed in the light in which it was looked at by the Vice-Chancellor, who, having decided that the memorandum above-mentioned constituted an agreement between the parties, and was not to be regarded as a mere offer, was relieved from the necessity of expressing any opinion as to the propriety of the decisions in Cooke v. Oxley (inf.), and Routledge v. Grant (inf), which cases he distinguished from the one under his consideration. The Court of Appeal, however, differed from the Vice-Chancellor as to the proper construction to be put on the document before them. They held it to be a mere offer, and considering accordingly that the rule in Cooke v. Oxley was applicable, felt themselves bound to reverse the decree of Sir J. Bacon. Upon this construction of the documents we admit that Cooke v. Oxley, and its kindred cases, are authorities which support the decision of the Court of Appeal, nor is this admission, as will be seen, in any way inconsistent with the opinion previously expressed by us when looking at the case from the point of view of the Court below. At the same time, however, we must say that we should not be sorry to see Dickinson v. Dodds carried to the House of Lords, in order that the principle of Cooke v. Oxley might be thoroughly criticised by the highest authority.

The declaration in Cooke v. Oxley (3 T. R. 653), which is the leading case on the point of which it treats, was that the defendant had proposed to sell and deliver to the plaintiff 266 hogsheads of tobacco on certain terms, if the plaintiff would agree to purchase them on the terms aforesaid, and would give notice thereof to the defendant before the hour of four in the afternoon of that day; and there was an averment that the plaintiff did agree, &c., and did give notice, &c., and requested delivery and offered payment. Judgment was arrested after verdict for the plaintiff, Lord Chief-Justice Kenyon saying, "Nothing can be clearer than that at the time of entering into this contract the engagement was all on one side; the other party was not bound; it was therefore nudum pactum.' This decision appears to have been afterwards affirmed in the Exchequer Chamber, M. 32 Geo. 3 (3 T. R. 654), and was approved of in Routledge v. Grant (4 Bing. 653, 660), and Head v. Diggon (3 M. & R. 97, 98); see also Humphries v. Carvalho (16 Ea. 45) and Payne v. Cave (3 T. R. 143); the result of these cases having been understood at least in this country to be such as it is very clearly stated by Mr. Benjamin ("Sale of Personal Property," 2nd edit., 35), namely, "A proposer may withdraw his offer so long as it is not accepted.