justifiably detained while the captors are searching about for further proof. Without such evidence in the principal cases, which the court showed a natural disinclination to rely upon, the presumption arising from Denmark's increased imports was clearly inadequate. It could only go to show that quantities of foodstuffs were being shipped to Denmark with the hope of resale and reshipment; and this has never been deemed sufficient to allow the doctrine of continuous voyage to apply.9 The second step which the court took in order to hold the foodstuffs confiscable was still more questionable. It involved the application of two Orders in Council. The first permitted the extension of the doctrine of continuous voyage to conditional contraband.10 So many excellent articles have been written on this doctrine that it is unnecessary to consider its history in detail." It is sufficient to say that there has never been a case which has applied the doctrine to conditional contraband where there has been no blockade. The American cases of conditional contraband cited by Sir Samuel Evans were all cases where the doctrine was being applied on the basis of blockade and not simply on the basis of contraband.12 Such an extension of the doctrine is particularly to be deplored when it is so generally conceded, in thoughtful times of peace, that the seizure of conditional contraband under the clearest circumstances involves loss and annoyance to the neutral which are not compensated for by the benefit to the belligerent.13 But the court, in applying

7 4 & 5 GEO. V, c. 13. MANUAL OF EMERGENCY LEGISLATION, 1914, 256, 274. The Naval Prize Act of 1864 was thereby repealed as to the admission of evidence. See TIVERTON, PRIZE LAW, 91. See the BRITISH NOTE of Feb. 10, 1915, replying to the United States' objection on this score. DEPARTMENT OF STATE, DIPLOMATIC CORRESPONDENCE, May 27, 1915, 44, 48. The United States has again objected in paragraphs 8 and 9 of the Note of Oct. 21, 1915, N. Y. TIMES, Nov. 8, 1915, p. 4, col. 3.

See the objections of the United States to this presumption in paragraphs 12 and 14 of the Note of Oct. 21, 1915, N. Y. TIMES, Nov. 8, 1915, p. 4, cols. 3 and 4.

See Sir Edward Grey's "Memorandum setting out the views of His Majesty's Government founded upon the decisions in the British Courts as to the Rules of International Law" governing the points to be discussed at the International Naval Conference of 1909. BRIT. BLUE BOOK, MISC., No. 4 (1909), 8. The doctrine of continuous voyage is there said not to apply where "evidence goes no further than to show that the goods were sent to the neutral port in the hopes of finding a market there for delivery elsewhere."

10 This was the famous Order in Council of August 20, 1914. MANUAL OF EMERGENCY LEGISLATION, 1914, 143. The Declaration of London, Art. 35, had specifically freed conditional contraband from the application of the doctrine of continuous voyage. BRIT. BLUE BOOK, MISC., No. 4 (1909), 82.

1 See 24 HARV. L. REV. 167; 9 AMER. JOURN. INT. LAW, 583; 4 ibid. 823; 1 ibid. 61; 3 L. MAG. & REV. (4th Ser.) 1. The doctrine became firmly established during England's war with France in the late eighteenth century to prevent neutrals trading between France and her colonies by reshipping from their own ports. The William, 5 Rob. 385; The Maria, ibid. 365. It was next applied to prevent reshipment by England at Bermuda and Nassau to blockade runners during our Civil War. The Springbok, 5 Wall. (U. S.) 1. In the same war the doctrine became crystallized in its third stage as applicable to absolute contraband when there was no blockade. The Peterhoff, 5 Wall. (U. S.) 28. In this last aspect the doctrine has been more recently recognized by Lord Salisbury in the case of The Bundesrath during the Boer War, BRIT. BLUE BOOK, AFRICA, No. 1 (1900); and by the Italian prize case of The Doelwyck, 24 JOURNAL DU DROIT INTERNATIONAL PRIVÉ (1897) 268.

12 See CLAPP, ECONOMIC ASPECTS OF THE WAR, 177.

13 It so appeared to England when she was instructing her representatives before the Naval Conference in 1909. "Any proposal tending in the direction of freeing neu

the doctrine of continuous voyage to conditional contraband, did not even require clear evidence that it was destined for the enemy's forces. To establish this fact reliance was placed upon a second Order in Council which declared that such a destination would be presumed where the goods were shipped "to order." 14 Sir Samuel Evans was doubtless bound to follow this Order in Council.15 But the net result of doing so is a close approach to ignoring the distinction between food destined for the civil population and for the enemy's forces.16 This result seems to be appreciated by England, as would appear from the constant references to Germany's high state of organization and government control.17 The fact, however, that every shipment to civilians releases, pro tanto, domestic foodstuffs to the military, and that governments make necessary requisitions anyway, indicates that the distinction does not rest upon a mere question of relative belligerent advantage, but is another evidence of the desire of nations to confine narrowly the injurious effects of war upon strangers to the quarrel.

In short, the decision of Sir Samuel Evans in its several steps appears to be nothing but an instance of the spirit of protective retaliation which

tral commerce and shipping from the interference which the suppression by belligerents of the trade in contraband involves should receive your sympathetic consideration, and, if not otherwise open to objection, your active support." BRIT. BLUE BOOK, MISC., No. 4 (1909), 23. See also the admirable argument to this end by Earl Loreburn made as recently as 1913. LOREBURN, CAPTURE AT SEA, chap. V.

14 "Declaration of London Order in Council No. 2" of Oct. 29, 1914, cl. 1 (iii). MANUAL OF EMERGENCY LEGISLATION, 1914, SUPPLEMENT I, 17, 18. The United States objected to the creation of this presumption in her Note of Dec. 26, 1914. DEPARTMENT OF STATE, DIPLOMATIC CORRESPONDENCE, May 27, 1915, 40. In the Note of Oct. 21, 1915, the right to object to this order is specifically reserved and its use merely criticized. N. Y. TIMES, Nov. 8, p. 4, col. 3, paragraph 10.

15 The Fox (1811), Edw. Adm. 311. See also the elaborate dictum of Sir Samuel Evans last June on this precise point. The Zamora, Brit. & Colonial Prize Cases, Pt. 3, 309,328-331. Both Lord Stowell and Sir Samuel Evans avoided a frank declaration that a municipal order must be followed though contrary to international law; they asserted, however, that it is inconceivable that Parliament should promulgate such an unlawful order. The result is obviously the same. It is tolerably clear that the Order then followed in The Fox was contrary to international law. See 3 PHILLIMORE, INTERNATIONAL LAW, 3 ed., § 436. The United States has protested twice against this attitude of English Prize Courts towards national Orders in Council. DEPARTMENT OF STATE, DIPLOMATIC CORRESPONDENCE, Oct. 21, 1915, 177; Note of Oct. 21, 1915, paragraphs 29, 30; N. Y. TIMES, Nov. 8, 1915, p. 4, col. 6.

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16 This distinction has always been one of the most sacred principles of international law. There have been only two real attempts to violate it by England in 1793 on the theory that she was starving France out, and by France in 1885 on the ground that rice occupied such a unique position in China. See HALL, INTERNATIONAL LAW, 6 ed., 658-659. England has twice in the last twenty years officially asserted the distinction through Lord Salisbury in the Boer War and through Lord Lansdowne in the Russo-Japanese War. See CLAPP, ECONOMIC ASPECTS OF THE WAR, 41, 42.

17 "The reason for drawing a distinction between foodstuffs intended for the civil population and those for the armed forces or enemy government disappears when the distinction between the civil population and the armed forces itself disappears." BRIT. NOTE of Feb. 10, 1915. DEPARTMENT OF STATE, DIPLOMATIC CORRESPONDENCE, May 27, 1915, 51.

"Regard must also be had to the state of things in Germany during this war in relation to the military forces and to the civil population, and to the method described in evidence, which was adopted by the government in order to procure supplies for the forces." Sir Samuel Evans in The Kim and Other Vessels, L. J. (Sept. 25, 1915)

is reflected in several of England's notes to this government.1 18 Sir Edward Grey has suggested that it is open to this country, if the decision is appealed and affirmed by the Judicial Committee of the Privy Council, to lay its claim before an international court of arbitration at the end of the war.19 But the United States has wisely adopted the course of objecting immediately through diplomatic channels, in an effort to check in some degree this progressive enlargement of the field of belligerent interference with neutral trade.

JUDICIAL ACCEPTANCE OF WORKMEN'S COMPENSATION. - An interesting chapter in the history of workmen's compensation legislation in this country, and of its progress through the judicial mill, is brought to a happy conclusion by a late decision of the New York Court of Appeals holding the new compensation act not in violation of the federal Constitution. Jensen v. Southern Pacific Co., 215 N. Y. 514, 109 N. E. 600. A recent case in California on a similar statute comes to the same conclusion. Western Indemnity Co. v. Pillsbury, 151 Pac. 398. This result is not surprising in view of what has come to be a settled public sentiment in favor of such legislation.

Consideration of the subject in the United States was not begun until after compensation laws had been in force for years in other countries and had proven generally beneficial. Hence the development of public opinion on the subject here was extremely rapid, and legislation was swift to follow. Beginning in 1909,1 with legislation in Montana and the appointment of investigating commissions in New York, Minnesota, and Wisconsin, a majority of our states have come to enact workmen's compensation or industrial insurance laws, the variety of whose provisions must be pleasing to those who see in the number of our states a fortunate broadness of field for legislative experiment.

Not a small part of this experimenting has resulted from the attempt to avoid constitutional objections; and it has met with varying success. The first act to be questioned in a court of last resort was the statute of New York. That statute had been framed with some care to meet constitutional objections; it was believed that the fact that it applied only to certain industries, declared with reason to be extra-hazardous, would see it safely through. This belief proved to be unfounded, for the act was held to be a violation of the Fourteenth Amendment and of a similar provision of the constitution of New York.2 The decision was greeted with

18 See, for instance, the Note of Oct. 11, 1915, N. Y. TIMES, Oct. 12, 1915, p. 3, col. 5.

19 See BRIT. NOTE of July 31, 1915, clauses 6 and 7. DEPARTMENT OF STATE, DIPLOMATIC CORRESPONDENCE, Oct. 21, 1915, 182. He cites the Jay Treaty and the Treaty of Washington as instances where this mode of procedure was recognized by the two countries. For these treaties see TREATIES AND CONVENTIONS BETWEEN UNITED STATES AND OTHER POWERS (off.), Great Britain, 1794, Art. VII, p. 323; Great Britain, 1871, p. 413.

1 Leaving out of account the short-lived Maryland act of 1902 and the federal act of 1908, which applied only to employees of the government.

2 Ives v. South Buffalo Ry. Co., 201 N. Y. 271, 94 N. E. 431.

5

a storm of disapproval, both from popular sources and from eminent legal authorities. It threw something like dismay into the camp of those who favored the new legislation, for it was recognized that, right or wrong, the decision was binding in New York, and might be followed in other jurisdictions. The search was therefore started for some device whereby a law could be enacted that would be effective and at the same time not unconstitutional. Naturally an optional or elective system was proposed, but in view of previous experience in Maryland and Massachusetts it was pretty clear that a system genuinely optional would not prove satisfactory. In these circumstances legislative ingenuity in Kansas and New Jersey contrived the scheme which has since become so common, and which consists in juggling with the common-law defenses to the disadvantage of the employer or employee who refuses to come within the act. That the legislature may completely do away with these defenses is undoubted. Whether they may classify employers according to whether they come within the act or not, denying to one class the defenses left available to the other, is another matter. So far as known, only one case has held the practice a violation of the Constitution. But to object to an act with compulsory provisions and allow this sort of an "option" is to talk in terms of unrealities which do no credit to constitutional law. The practical working of the "option" legislation is not here in question, though some difficulties have been suggested and others have developed.9 Further legislation on this pattern should therefore not be encouraged, provided it is clear that compulsory legislation will not be held invalid.

8

That such legislation ought to be upheld has been tolerably clear ever since the decision in the Oklahoma Bank case.10 That decision was brought to the attention of the court in the Ives case, and, but for the belief of the New York court that "due process" in the constitution of the state meant something different from what the Supreme Court of the United States declared it meant in the Constitution of the United States, must have been decisive in that case." State legislatures which

3 See, for instance, the signed statement by teachers of law in fourteen law schools published in the Outlook of July 29, 1911 (98 OUTLOOK 709), and the careful article by Mr. Freund in 2 AMERICAN LABOR LEGISLATION REVIEW 43 (1912).

See, for example, the discussion reported in 38 ANNALS OF THE AMERICAN ACAD. OF POL. & Soc. Sc. (1911), especially at 147, 173, 277.

5 See RUBINOW, SOCIAL INSURANCE, 169, 171; I AMERICAN LABOR LEGISLATION REVIEW 98 (1911).

• Second Employers' Liability Cases, 223 U. S. 1.

7 Kentucky State Journal Co. v. Workmen's Compensation Board, 161 Ky. 562, 170 S. W. 1166. Contra, Borgnis v. Falk Co., 147 Wis. 327, 133 N. W. 209; State v. Creamer, 85 Oh. St. 349, 97 N. E. 602; Opinions of the Justices, 209 Mass. 607, 96 N. E. 308; Deibeikis v. Link-Belt Co., 261 Ill. 454, 104 N. E. 211; Mathison v. Minneapolis Street Ry. Co., 126 Minn. 286, 148 N. W. 71; Sexton v. Newark District Telegraph Co., 84 N. J. L. 85, 86 Atl. 451, affd. 86 N. J. L. 701, 91 Atl. 1070; Hawkins v. Bleakly, 220 Fed. 378 (Iowa act); Shade v. Ash Grove Lime and Portland Cement Co., 93 Kan. 257, 144 Pac. 249; Mackin v. Detroit-Timkin Axle Co., 153 N. W. 49 (Mich.).

8 See Ernst Freund, "Constitutional Status of Workmen's Compensation," in 2 AMERICAN LABOR LEGISLATION REVIEW 43, 53.

9 See RUBINOW, SOCIAL INSURANCE, 178 et seq.

10 Noble State Bank v. Haskell, 219 U. S. 104.

11 Ives v. South Buffalo Ry. Co., 201 N. Y. 271, 317, 94 N. E. 431, 448. This particular absurdity gives strength to the position of those who contend that the "due

have enacted compulsory workmen's compensation acts have been rewarded by having their acts upheld.12 Some states have amended their state constitutions to permit legislation of this sort. 13 The Arizona constitution goes so far as to direct the legislature to enact it.14 It is not explained in just what manner these provisions remove the objections under the Fourteenth Amendment; 15 this is more evidence that those objections are really non-existent. So it seems probable that compulsory legislation would now be held good in most jurisdictions.

The present outlook shows, therefore, the great change that has occurred since the decision in the Ives case. The reason for this is found in the nature of the thing decided. As has been often said, decisions on the limits of due process and the propriety of what is claimed to be an exercise of the police power are decisions mainly of fact and public policy.16 Results are different as facts change or are more clearly brought to the attention of the court.17 Courts appreciate more fully the strength of settled public convictions. So legislation that once seemed an unreasonable interference with the liberty and property of citizens is seen, though the court may still be a disbeliever in its wisdom, to embody a sufficient public sentiment and to be calculated to effect a sufficient public purpose to make it not an unreasonable exercise of power.18 These decisions have met with general favor, evincing as they do a decent respect for the opinion of the legislature, and leaving to that body the large room for experiment which the wisest critics of our institution have always held desirable.19

TENANCY BY THE ENTIRETY AND THE NEW YORK TRANSFER TAX. The members of the New York Court of Appeals have just expressed three

process" clauses should be removed from our state constitutions, and the whole matter left to be governed by the Fifth and the Fourteenth Amendments.

12 State v. Claussen, 65 Wash. 156, 117 Pac. 1101; Stoll v. Pacific Coast Steamship Co., 205 Fed. 169 (Washington act); State v. Creamer, 85 Oh. St. 349, 97 N. E. 602 (where the act was compulsory on the employee after his employer had elected); and the two principal cases. Contra, Cunningham v. Northwestern Improvement Co., 44 Mont. 180, 119 Pac. 554, on an unfortunate detail of the Montana law. The court considers the other provisions of the act and declares that they are not repugnant to the constitution.

13 Ohio (CONST., Art. II, § 35, adopted Sept. 3, 1912); California (CONST., Art. XX, § 21); New York (CONST., Art. I, § 19, adopted Nov. 4, 1913); Wyoming (adopted 1913); Vermont (adopted April 8, 1913).

14 ARIZ. CONST., Art. XVIII, § 8.

15 Hence a judge of the New York Supreme Court, before the decision in the principal case, expressed the opinion that the new act was unconstitutional. Herkey v. Agar Mfg. Co., 90 N. Y. Misc. 457.

16 See A. A. Bruce, in 20 GREEN BAG 546, 552; Prof. Frankfurter, in 28 HARV. L. REV. 790; FREUND, POLICE POWER, §§ 21, 63.

17 Compare, for instance, the discussion in Lochner v. New York, 198 U. S. 45, 59, and in People v. Williams, 189 N. Y. 131, 81 N. E. 778, with that in the dissenting opinion of Harlan, White, and Day, JJ., in Lochner v. New York, 198 U. S. 45, 70, and with Muller v. Oregon, 208 U. S. 412, 419, and with McLean v. Arkansas, 211 U. S. 539, 549, and with People v. Schweinler Press, 214 N. Y. 395, 108 N. E. 639.

18 See Holden v. Hardy, 169 U. S. 366, 386; Otis v. Parker, 187 U. S. 606; Noble State Bank v. Haskell, 219 U. S. 104; Borgnis v. Falk Co., 147 Wis. 327, 349, 372, 133 N. W. 209, 215, 223.

19 See THAYER, LEGAL ESSAYS, 16 et seq.; COOLEY, CONSTITUTIONAL Limitations, 7 ed., 253.