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and by a majority of the continental countries. It is this rule which a British court has now deliberately abandoned in favor of a more strict one, to wit, that the neutral ship is to be confiscated whenever more than half its cargo, by value, weight, volume, or freight value, is contraband. This new rule had previously been promulgated by an Order in Council, upon which, however, under the rule of The Zamora, the court rightly declined to rely. The decision is based, instead, upon an alleged adoption of the new rule by most of the other maritime nations, consequent, the court seems to think, to Article 40 of the ill-fated Declaration of London.

The practical results of the decisions are relatively unimportant, for it is rare indeed that a modern shipowner will be unaware that more than half his cargo is contraband, difficult though it might be to prove his knowledge. The new rule is substantially as just to the shipowner as was the former English rule. And although this may afford a belligerent, under given circumstances, a rather facile method of building up a mercantile marine, or, as in England's case, of retaining an already-won supremacy in that field, the old rule also had possibilities of this.

The principle upon which the court rests the decisions may, however, be perilous in the extreme. Article 40 of the Declaration of London, which adopted the half-cargo rule, must be read with Article 35, which exempted from capture conditional contraband on a neutral vessel bound to a neutral port. In the second of these cases, The Maricaibo, the new rule is unhesitatingly applied to precisely that case. For its new rule in entirety, then, the court can draw from the Declaration of London not even the dubious sanction of an unratified declaration of principles. Accordingly it is compelled to rely solely upon an alleged prior adoption of the new rule, or its equivalent, by a majority of maritime powers. 8 It is clear that the new rule cannot have been adopted before the commencement of the present war.' What the court relies upon is an adoption of the rule in the course of the war by both groups of belligerents.20

publication of the Naval War College, necessarily expresses the official views of the United States. The present view of the United States may perhaps be that of Article 8 of the Code of Maritime Neutrality, which exempts neutral vessels from confiscation for carrying contraband, in all cases. See note 12, infra.

5 5 Calvo, supra, $ 2778: “Deux principes paraissent guider la practique des nations maritimes: les unes limitent la confiscation à la portion illicite du chargement du navire neutre, tandis que d'autres l'etendent au chargement tout entier et au navire même, lorsque la contrebande forme la partie principale de la cargaison.” Cf. The Hakan, 278 et seq.

6 (1916) 2 A. C. 77, discussed in 30 Harv. L. Rev. 66. 7 See 2 WESTLAKE, supra, 255 et seq.

8 In The Hakan the court makes a comprehensive summary of the law of the nations participating in the International Naval Conference of 1908-1909, preceding the Declaration of London. Even from this not wholly accurate summary it appears that Japan only, of the nations represented, could be considered to hold the half-cargo rule at that time.

• WHEATON, ELEMENTS OF INTERNATIONAL LAW, 5 ed. (an English text of authority), 751, considers the British rule in 1916 to be exactly that laid down by Lord Stowell in 1798, despite the Declaration of London and the divergent views of continental countries. See PYKE, THE LAW OF CONTRABAND OF WAR (English, 1915), 231 el seq. Cf. note 8, supra.

10 See The Hakan, 280, 281. The United States is erroneously regarded as having adopted the rule also. See note 4, supra.

While the fact of such an acceptance by the Triple Alliance is not wholly clear," for the purposes of this note it will be assumed. It should be observed that no neutral country has at any recent time held the new rule. 12 It is a rule whose adoption can hardly injure belligerents; it can only injure neutrals directly, or (theoretically only) discourage the carriage of contraband. Even assuming the latter effect to follow in fact, the only possible injury which the rule can inflict upon the opposing belligerent is to force it to pay higher freight rates for its contraband. The justification for the rule's adoption by a belligerent is, upon an international balance of considerations, slight indeed. The primary motive of the belligerents in adopting the rule must have been, it would seem, not even the doubtfully legitimate one of injuring their enemies, but to transfer from neutrals to themselves a part of what has now become internationally the most important of property. In setting up the new rule under such circumstances the belligerents, although perhaps constituting "a sufficiently general consensus of view and assent” of the Great Powers, have nevertheless failed, it is submitted, to establish a new rule of international law. In adopting it they sat, not as legislators, but as self-seekers; in construing it they are not judges, but parties in interest. It may indeed be further said that no change of international law by belligerents in the course of a war, no matter how numerous or important they may be, can be valid against unconsenting neutrals.13 Only thus can international law retain even the pretence of morality. And without at least the appearance of morality it can no longer be law.

Acquiescence by neutrals in the rule of the principal cases seems doubtful.14 The only merit of the rule that it fixes a mathematical test easy to apply, for the confiscation of neutral property by a belligerent — will hardly be appreciated even by nations that have no policy of permanent neutrality. It will take other considerations to produce neutral consent, it would seem. The possibility that Great Britain's

11 This fact is indeed vital for the validity of the new rule, even accepting the court's reasoning. Article 41 of the German Prize Code is the same as Article 40 of the Declaration of London, it is true; but the restrictive Article 35 of the Declaration of London is also to be found in the German Prize Code. So that a German prize court would probably have released such a ship as The Maricaibo, which the British court condemned. See HUBERICH AND KING, THE PRIZE CODE OF THE GERMAN EMPIRE AS IN FORCE JULY ist, 1915, especially at pp. 30 and 105. There is no reason to believe that the German prize court decisions cited in The Hakan (The Batavia, June 1, 1915, and The Brilliant, August 14, 1915) are on facts similar to those of The Maricaibo. Austria-Hungary likewise appears to have done no more than adopt both Articles 35 and 40 of the Declaration of London.

12 Cf. Article 8 of the proposed Code of Maritime Neutrality, of the American Institute of International Law, made up of representatives from almost all the American republics, in session at Havana in January. The code is reprinted in full in THE CHRISTIAN SCIENCE MONITOR, January 25, 1917.

Cf. the somewhat extreme views of Sir Francis Piggott, late Chief Justice of Hong-Kong, in THE NEUTRAL MERCHANT, ix: "Arbitration after the war, and compensation, are the only remedies when neutral property has been injured. Then, and then only, can any new departure by a belligerent be tested by a reference to fundamental principles. The reason is obvious. International law is a progressive science; it has not yet pronounced its last word on the relations between belligerency and neutrality. A neutral government is not entitled to assume that it alone is the judge of what that last word will be.”

14 See note 12, supra.


ends may be identical with the United States' has already been recognized by this REVIEW.15 Whether that possibility still exists when the situation to be approved is the maintenance of the present mercantile marine status of the nations, is another question.

THE CONFLICT OF PRESUMPTIONS ON SUCCESSIVE MARRIAGES BY THE SAME PERSON. - In the recent California case of In re Hughson's Estate: Brigham v. Hughson, the plaintiff, who had been married to the decedent by a ceremonial marriage, claimed a share in the estate as surviving wife. The defendant proved a ceremonial marriage between herself and the decedent, subsequent in time to the marriage of the plaintiff with the decedent, and proved that the marriage relation so created had continued till the time of decedent's death. It appeared that the plaintiff had remarried twice after the disappearance of the decedent, believing him dead. It further appeared that there were ten children by the marriage between the decedent and the defendant. The plaintiff declared that her marriage with the decedent continued down to the time of his death. The court held that the burden of proving that the first marriage had not been set aside by divorce was on the plaintiff, and that this burden had not been met, and that a divorce would therefore be presumed in favor of the second marriage.

Presumptions must necessarily play a large part in the proof of marriages. Actual evidence of the ceremony, or of its incidents, cannot always be procured, and proof of valid marriages would fail if such evidence were required. As a result a broad presumption in favor of the validity of apparent marriages characterizes English and American law. This presumption not only dispenses with proof of ceremonial formalities where some form of marriage is shown to have been performed, but predicates marriages, regardless of forms, on cohabitation and repute in the community. Moreover, marriages, once established, are presumed to continue, aside from affirmative evidence to the contrary, or conflict of presumptions, and the burden of proof is heavy upon one who attacks the validity of the protected status.

As is usually the case where the law is related in terms of presumptions, difficulties arise where two presumptions in the same field conflict. So where a husband or wife contracts a second marriage before the termina

30 HARV. L. REV. 279, 283. 1 160 Pac. 548.

? Piers v. Piers, 2 H. L. Cas. 331; Dickerson v. Brown, 49 Miss. 357, 371, 372. The maxim semper praesumitur pro matrimonio seems to be an application of the general common law presumption in favor of innocence.

Franklin v. Lee, 30 Ind. App. 31, 62 N. E. 78; Winter v. Dibble, 251 II. 200,95 N. E. 1093. See Cooley, J., in Hutchins v. Kimmell, 31 Mich. 126, 130, and cases cited. The authority of the celebrant and the capacity of the parties, etc., are covered by the presumption.

• Mitchell v. Mitchell, 11 Vt. 134. See 1 BISHOP, MARRIAGE, SEPARATION AND DIVORCE, 98 935, 936. See a complete collection of cases in L. R. A. 1915 E, 8, 56, 87. Common law marriage has been changed in many states by statute.

6 Wallace v. Pereles, 109 Wis. 316, 85 N. W. 371. 6 Patterson v. Gaines, 6 How. (U. S.) 550.


tion of the first marriage the presumption in favor of the second marriage is opposed to the presumption in favor of the continuance of the first, and a difficult situation results. In discussing this situation we must limit our inquiry to cases where the validity of the second marriage is being attacked on the ground that the first marriage still continues, and to cases where no question of criminal law is raised.8 It is also necessary to rule out cases where one of the marriages was a common law marriage, so called. In the narrowed field thus left it is generally law that the presumption in favor of the second marriage will prevail.

This presumption takes three forms. Occasionally it is based on the presumed invalidity of the first marriage.10 But more generally it is based on the discontinuance of the first marriage by death or by divorce. The presumption of the death of a former spouse is thoroughly established in our law, but it is obviously swallowed up in the larger and more recent presumption of the termination of the former marriage by divorce. And the presumption of divorce seems to be as clearly settled. 12

The limits of the divorce presumption, however, are by no means exact. The periods of separation which must intervene between the termination of the first relation and the establishment of the second differ in different jurisdictions, and there is a marked diversity of opinion in regard to the weight to be attached to such factors as the remarriage of the other

? It is only where the second marriage is attacked that the protects it fully with presumptions. If an affirmative attempt is made to prove the validity of the second marriage, an attack on the first marriage is entailed and the presumption shifts to protect the first marriage. Clark v. Cassidy, 62 Ga. 407; Re Hamilton, 76 Hun 200, 27 N. Y. Supp. 813; Wilson v. Allen, 108 Ga. 275, 33 S. E. 975.

8 In criminal cases the presumptions in favor of the legality of one marriage are met by the presumptions in favor of the legality of the other and the prosecutor must prove his case without a legal bias either way. Lowerey v. People, 172 II. 466, 50 N. E. 165; Reg. o. Lumley, L. R. 1 Cr. Cas. Res. 196.

• No presumption will be made “in favor of the guilty parties” where a commonlaw marriage, or rather the ingredients thereof, is shown subsequent to a ceremonial marriage which has not been dissolved. Nossaman v. Nossaman, 4 Ind. 648. A pos sible exception to the above statement is the presumption that marriage is created by the continuance of the cohabitation after the impediment of the former marriage has been withdrawn, whether or not the parties know of its withdrawal. De Thoren v. Atty. Gen., 1 A. C. 686. And the presumption of marriage from cohabitation and repute will not alone overthrow a later ceremonial marriage. Waddingham v. Waddingham, 21 Mo. App. 609. See Houpt v. Houpt, 5 Ohio Rep. 539.

10 Palmer v. Palmer, 162 N. Y. 130, 56 N. E. 501.

11 Lockhart v. White, 18 Tex. 102, 110; Spears v. Burton, 31 Miss. 547; Johnson o. Johnson, 114 III. 611, 3 N. E. 232; Hunter v. Hunter, 11 Cal. 261, 43 Pac. 756; Cash v. Cash, 67 Ark. 278, 54 S. E. 744; Nixon v. Wichita Co., 84 Tex. 408, 19 S. W. 560; Murchison v. Green, 128 Ga. 339, 57 S. E. 709; Smith v. Fuller, 138 Iowa 91, 115 N. W. 912; McCausland's Estate, 213 Pa. 189, 62 Atl. 780; Gilroy v. Brady, 195 Mo. 205, 93 S. W. 279; Wagoner v. Wagoner, 128 Mich. 635, 87 N. W. 898.

12 Blanchard v. Lambert, 43 Iowa 228; Harris v. Harris, 8 Ill. App. 57; Klein v. Laudman, 29 Mo. 259; Coal Run Co. o. Jones, 127 IV. 379, 8 N. E. 865, 20 N. E. 89; Hull o. Rawls, 27 Miss. 471, 473; Carroll v. Carroll, 20 Tex. 731, 740; Boulden v. McIntire, 119 Ind. 574, 21 N. E. 445; Howton v. Gilpin, 24 Ky. L. 630, 69 S. W. 766; Re Wile's Estate, 6 Pa. Super. Ct. 435; In re Thewlis's Estate, 217 Pa. 307, 66 Atl. 519; Huff v. Huff, 20 Idaho 450, 118 Pac. 1080; Shepard v. Carter, 86 Kan. 125, 119 Pac. 533; Ross v. Sparks, 79 N. J. Eq. 649, 83 Atl. 1118; Goset v. Goset, 112 Ark. 47, 104 S. W. 759; Wilcox v. Wilcox, 171 Cal. 770, 155 Pac. 95; Bowman v. Little, 101 Md. 273, 61 Atl. 223; In re Rash, 21 Mont. 170, 53 Pac. 312; Lyon v. Lash, 79 Kan. 342,99 Pac. 598; Gamble v. Rucker, 124 Tenn. 415, 137 S. W. 499; Haile v. Hale, 40 Okla. 101, 135 Pac. 1143; Re Grande, 80 Misc. 540, 141 N. Y. Supp. 535.

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party to the first marriage, or the existence of children by the second marriage. Some states, as notably Iowa, require a foundation in fact for the presumption,13 and refuse to entertain it where the former spouse has not behaved in a way inconsistent with the marriage relation. And Iowa has a further peculiarity in refusing to exercise the presumption in order to “barricade” the rights of one of two rival claimants to the status of surviving widow 14 — a position which seems to lose sight of the reasons underlying the whole use of presumptions in the law of marriage. The lengths to which the presumption will be carried are as uncertain as its scope. Massachusetts and Wisconsin,15 on the one hand, refuse to notice any presumption of divorce, while a recent New York case, 16 on the other, holds that if the presumption of divorce is overthrown, a presumption that the former marriage has been annulled will arise in its place. Another New York decision 17 which does not deal with divorce is yet significant as showing the length to which a sane court will be carried by its “ zeal for legitimacy.” In order to validate a common law marriage two prior marriages, together with the requisite parties thereto, were presumed, a third marriage was voided by the presumptive parties, and one of the imagined parties was presumptively deceased in time to make the marriage in question presumptuously valid and its offspring legitimate.

Where a presumption has been carried to such lengths, the important questions become, How much evidence, and evidence of what kind, will be required to rebut the inference? It is clear that something more than the inferential testimony of near relatives that they had never heard of a divorce is necessary. 18 There must be direct proof that there has been no divorce, for the law may require proof of a negative where a negative is essential to the existence of a right.' And the question is, What evidence will suffice to establish the negative?

Aside from the Iowa exceptions noted above, proof by a former spouse that he, or she, had never procured a divorce, and had never been served with notice of a divorce, will not suffice.20. This seems so generally established that it may safely be said that the party attacking the second marriage must prove neither party to the first marriage has obtained a divorce.21 With this position hypothesized it becomes apparent that the burden of overthrowing the second marriage may be extremely onerous,

13 Ellis v. Ellis, 58 Iowa 720, 13 N. W.65; Gilman v. Sheets, 78 Iowa 499, 43 N.W. 299; In re Colton, 129 Iowa 542, 105 N. W. 1008. The argument advanced is that the presumption of the innocence of the party contracting the second marriage is met by a presumption that he or she would not have procured a divorce on false testimony.

14 In re Colton, supra. Either the theoretical ground of innocence or the practical ground of policy in maintaining established relations would seem irreconcilable with this exception. More is at stake than the rights of A. or B. to a widow's legacy.

15 Randlett v. Rice, 141 Mass. 385, 6 N. E. 238; Williams v. Williams, 63 Wis. 58, 23 N. W. 110. The argument in the Wisconsin case fails to discriminate between cases of common law and cases of ceremonial marriage, and argues from criminal to civil

16 Lazarowicz v. Lazarowicz, 91 Misc. App. 116, 154 N. Y. Supp. 107. 17 In re Biersack, 159 N. Y. Supp. 519. 18 Nixon v. Wichita Co., 84 Tex. 408, 19 S. W. 560. 19 Boulden v. McIntire, 119 Ind. 574, 21 N. E. 445. See 2 GREENL. Ev., $ 454.

20 Pittinger v. Pittinger, 28 Colo. 308, 64 Pac. 195; Coal Run Co. v. Jones, 127 III. 379, 8 N. E. 865, 20 N. E. 89; Hull . Rawls, 27 Miss. 471, 473.

21 Chancey v. Whinnery, 147 Pac. 1036 (Okla.).


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