In the very able paper appearing in a previous issue of this Journal, discussing the question of whether the United States should or should not fortify the Panama Canal, the writer states his conclusion that we are legally and morally bound to abstain from fortifying, that the advantages which fortifications might give are more than offset by their disadvantages, and, irrespective of the question of legality, it is bad public policy and strategy to fortify.

The practice of extending protection, or “ asylum,” within the walls of legations and consulates to refugees and unfortunates, rests upon no very satisfactory legal basis, but rather upon considerations of humanity. Though from time to time certain recognized doctrines of international law and certain doctrines of somewhat more doubtful recognition have been asserted in justification, it will be found that the so-called “ right of asylum ” is no right at all, but only a privilege granted or claimed where its use seems necessary by reason of an unstable condition of society.

The partition of Africa, which the present generation has seen accomplished, has yielded a generous by-product in international law. Protectorates, spheres of influence, hinterlands, the position of savage and semicivilized tribes, nominal and effective possession, territorial leases — these are but a few of the topics to which the political apportionment of the Dark Continent has drawn attention and exacted serious consideration. For more than twenty years the position of one of the largest holders of African territory, the Congo Free State, has aroused much discussion. With the serious accusations against Congolese administration press, pulpit, and platform have made the English-speaking peoples familiar. How far these have been proyed it is not a part of the present paper to decide. It is enough for our purpose to say that charges of maladministration have been made in the official publications of more than one country, and that protests based upon them have been presented to those responsible for the direction of the State’s affairs. No doubt the criticisms of the past few years have tended to hasten the annexation of the Congo, before which Belgium had previously faltered. Leaving aside the details of the annexation, important as they are from another point of view, the change means the substitution of a responsible government for the Congo in place of the former absolute control by a king-sovereign, who for some years had been able, thanks to the mutual jealousies of the powers, to govern as he chose, whatever might have been the limitations upon his activities which treaties had sought to impose. The coercive power of ultranational public opinion, upon which in the last analysis international law depends, has been plainly evident in the case of the Congo State. Public sentiment, transcending national boundaries, has demanded a responsible government for the Congo. It has accomplished practically all that the concerted action of the powers might have sought to do.

In the July number of the Journal is given the decision of the Court of Claims in Sanches v. The United States and of the Supreme Court in O’Reilly v. Brooke. Both cases involve the validity of the orders of military governors in former Spanish territory abolishing offices for which a price had been paid and which the holder claimed were private property and thus under the protection of the law of nations and the treaty of peace with Spain. In the Sanches case the office abolished was that of “ numbered procurador of the courts of first instance of the capital of Porto Rico;” in the O’Reilly case the office was that of high sheriff of Havana. In each case the opinion was expressed that the office had ceased with the extinction of Spanish sovereignty, but in the Supreme Court case this was not necessary to the decision, as General Brooke’s liability had already been denied on other grounds, while the opinion on this point was delivered without argument of counsel, without exposition, and without the citation of authority other than that of the Secretary of War in approving General Brooke’s order. It is the opinion of the writer that the holders of those offices were entitled to indemnification. The facts of the O’Reilly controversy will be gone into in considerable detail.

The cause for the creation of this conference and for ite resultant codification of naval prize law can be found in the convention to establish an International Prize Court drawn up and signed at the Second Hague Conference by most of the powers in attendance.

Article 7 of this convention reads as follows:

In previous papers of this Journal I have shown that the Department of State was created to manage not only the foreign affairs of the government, but such domestic executive business as did not naturally fall under the war and treasury departments; and in addition it has performed certain temporary or occasional duties some of which have passed to other departments and some of which are still under its jurisdiction. In the natural expansion of the business of the government the tendency has been to transfer from the Department all those duties which are purely domestic, and those which have been thus transferred will now be considered.