So much for pensions allowed to soldiers themselves.

As to separation allowances and pensions to dependents the argument is different. The contention here is that the dependent, while the bread-winner was serving or by reason of his death, was deprived of the advantage of his support and therefore suffered damage as a member of the civilian population. But for the dependent to make good such a claim as one for damage done to the "civilian population and to their property " we have seen that the injury inflicted must either have been an injury to the person of the claimant, which in this case it plainly is not, or an injury to the claimant's property, and how can it be said that a dependent has any "property" in the earnings of the person on whom he or she depends? If this view is not accepted it would seem to follow that anyone who derived advantage from the labour of a man called up as a soldier might put in a claim for the economic loss entailed by his calling up. On this basis a man's employer would be entitled to make a claim for the loss of the benefit of his labour, and the civilian population as a whole could make a claim for the loss of the economic product resulting from the removal of a contributor. This, however, would clearly be to go much too far, as it would make the disputed words throw upon Germany the whole of the economic loss to the Allies resulting from the War.

The fact that the particular loss of the dependent in these cases is attenuated by a Government contribution, whereas the Government cannot, or at any rate has not endeavoured to, mitigate the general economic loss, is, as already stated, irrelevant. It is not perhaps without significance to recall that the common law never recognised any claim for damages by the dependent of a person killed by the tortious act of another, and that it needed Lord Campbell's Act to introduce a right of this description.

Again, without going into the technical doctrines of English law as to "remoteness" of damages, it might well be contended, as a matter of construction, that the claim in respect of reparation allowances does not fall within the language used. The removal of the bread-winner from the home is not an injury "done by" (not, be it observed, "resulting from ") "the aggression of Germany by land, sea or air." The calling up of men for military service—and in Anglo-Saxon countries the institution of compulsory service—was an act of their own Government. This, indeed, would bring us back by another route to the point already made: if the removal of the bread-winner was an injury "done by" German aggression, every economic disadvantage suffered during the war by the civilian population, being equally the consequence of German aggression, ought to be classed as an injury for which Germany bound herself to pay. Lodging-house keepers at Cromer could claim damages for the diversion of their guests to Torquay.

Finally, it should be noted that the disputed words speak of damages done to the civilian population by the aggression of Germany "by land, sea and from the air "—these latter being words which the opinion of General Smuts does not discuss. But unless these words are to be dismissed as mere rhetorical surplusage, they strongly confirm the suggestion that what we have to deal with is actual physical destruction, by land in the devastated regions of France and elsewhere, by sea in the torpedoing of merchant ships the property of civilians and the killing of merchant seamen, and from the air by the dropping of bombs upon centres of civilian population. Nothing, in fact,

during the course of the war had aroused more anger than the peril and loss to which, contrary to the experience of former wars, civilians were exposed, and it was in this respect that Germany was to be bound to make compensation. This surely is a plain common-sense construction of the disputed words.

Whatever may have been the true construction, a lawyer cannot help noting with regret that President Wilson's final decision of the matter 1 does not appear to have been based upon any accurate process of reasoning :

"We explained to him that we could not find a single lawyer in the American Delegation who would give an opinion in favour of giving pensions. All the logic was against it. Logic! Logic!' exclaimed the President, 'I don't give a damn for logic! I am going to give pensions.'

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APPENDIX

Note on Reparation 2

"O."

THE extent to which reparation can be claimed from Germany depends in the main on the meaning of the last reservation made by the Allies in their note to President Wilson, November 1918. That reservation was agreed to by President Wilson and accepted by the German Government in the Armistice negotiations and was in the following terms:

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Further, in the conditions of peace laid down in his address to Congress on January 8, 1918, the President declared that invaded territories must be restored as well as evacuated and made free. The Allied Governments feel that no doubt ought to be allowed to exist as to what the provision implies. By it they understand that compensation will be made by Germany for all damage done to the civilian population of the Allies and to their property by the aggression of Germany, by land, by sea and from the air.'

"In this reservation, a careful distinction must be made between the quotation from the President which refers to the evacuation and restoration of the invaded territories and the implication which the Allies find in that quotation and from which they proceed to enunciate the principle of general applicability. The Allies found in the President's provision for the restoration of the invaded territories a general principle of far-reaching scope. This principle is that of compensation for all damage to the civilian population of the Allies, in their persons or property, which results from the German aggression, and whether done on land, on sea, or from the air. By accepting this comprehensive principle (as the German Government did) they acknowledged their liability for all damage to the civilian population or their property, wherever or however arising, so long as it was the result of German aggression. The President's limitation to restoration of the invaded territories only of some of the Allies was clearly abandoned.

"The next question is how to understand the phrase 'civilian population in the above reservation, and it can be most conveniently answered by an illustration. A shopkeeper in a village in Northern France lost his shop through enemy bombardment and was himself badly wounded. He would be entitled, 1 See Mr. Lamont's account on page 272 of What Really Happened at Paris, Hodder & Stoughton, 1921.

2 General Smuts' opinion is quoted from Baruch: The Making of the Reparation and Economic Sections of the Treaty.

as one of the civilian population, to compensation for the loss of his property, and for his personal disablement. He subsequently recovered completely, was called up for military service, and after being badly wounded and spending some time in the hospitals, was discharged as permanently unfit. The expense he was to the French Government during this period as a soldier (his pay and maintenance, his uniform, rifle, ammunition, his keep in the hospital, etc.) was not damage to a civilian, but military loss to his Government, and it is therefore arguable that the French Government cannot recover compensation for such expense under the above reservation. His wife, however, was during this period deprived of her bread-winner, and she therefore suffered damage as a member of the civilian population, for which she would be entitled to compensation. In other words, the separation allowances paid to her and her children during the period by the French Government would have to be made good by the German Government, as the compensation which the allowances represented was their liability. After the soldier's discharge as unfit, he rejoins the civilian population, and as in the future he cannot (in whole or in part) earn his own livelihood, he is suffering damage as a member of the civilian population, for which the German Government are again liable to make compensation. In other words, his pension for disablement which he draws from the French Government is really a liability of the German Government, which they must, under the above reservation, make good to the French Government. It could not be argued that as he was disabled while a soldier he does not suffer damage as a civilian after his discharge, and his pension is intended to make good this damage, and is therefore a liability of the German Government. If he had been killed in active service, his wife as a civilian would have been totally deprived of her bread-winner, and would be entitled to compensation. In other words, the pension she would draw from the French Government would really be a liability of the German Government under the above reservation, and would have to be made good by them to the French Government.

"The plain common-sense construction of the reservation therefore leads to the conclusion that, while direct war expenditure (such as the pay and equipment of soldiers, the cost of rifles, guns and ordnance, and all similar expenditures) could perhaps not be recovered from the Germans, yet disablement pensions to discharged soldiers or pensions to widows and orphans, or separation allowances paid to their wives and children during the period of their military service, are all items representing compensation to members of the civilian population for damage sustained by them for which the German Government are liable. What was spent by the Allied Governments on the soldier himself, or on the mechanical appliances of war, might perhaps not be recoverable from the German Government under the reservation, as not being in any plain and direct sense damage to the civilian population. But what was, or is, spent on the citizen before he became a soldier or at any time on his family, represents compensation for damage done to civilians and must be made good by the German Government under any fair interpretation of the above reservation. This includes all war pensions and separation allowances, which the German Government are liable to make good, in addition to reparation or compensation for all damage done to property of the Allied peoples.

Paris, March 31, 1919.

"(Signed) J. C. SMUTS."

THE CANADIAN-AMERICAN HALIBUT FISHERIES TREATY

SOME of the difficulties attendant upon the development of the international status of the British Self-Governing Dominions are brought to light in the circumstances surrounding the negotiation of the treaty between Canada and the United States for the regulation of the halibut fisheries on the Pacific Coast of North America. In the past when a Dominion has negotiated a separate commercial treaty with a foreign Power the British Ambassador accredited to such Power has signed the treaty in association with the Dominion representative. This procedure was adopted as late as 1921 in the Trade Agreement between Canada and France. Informal agreements such as that concluded between Canada and the United States in 1911 form no exception to this rule, because, as Professor Berriedale Keith has recently pointed out :

"such agreements are not in the international sense treaties; most of all, they impose no obligation on the Imperial Government and a breach of them is no ground for diplomatic representations.” 1

But in the course of the preliminary correspondence relating to the signing of the Halibut Treaty the Governor-General of Canada telegraphed to the British Ambassador at Washington on February 21, 1923 :—

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'My Ministers are of opinion that as regards Canada the signature of Mr. Lapointe [the Canadian Minister of Marine] will be sufficient, and that it will not be necessary for you to sign as well."

To this the Ambassador replied on February 23rd :

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I have been instructed by His Majesty's Government to sign the Treaty in association with Mr. Lapointe." 2

But in consequence of further representations by the Canadian Government to the effect that the treaty affected solely the United States and Canada, the Imperial Government withdrew from its position, and the treaty was signed on March 2nd by Mr. Hughes, the United States Secretary of State, and Mr. Lapointe. Thus for the first time a treaty was not only negotiated by a Dominion representative alone but also signed by him alone.

The matter, however, did not end there, for the United States Senate ratified the treaty subject to the understanding that:

none of the nationals or inhabitants on boats or vessels of any other part of Great Britain (sic) shall engage in the halibut fishery contrary to the provisions of the Treaty."

And it is worthy of note that both the President of the United States and the Secretary of State referred to the treaty as being concluded not with Canada but with Great Britain. The rider of the United States Senate prevents the treaty from being regarded as concerning Canada alone, and the concurrence of the Imperial Government and of the other Dominions would be required for its ratification. No steps have been taken to obtain such concurrence and the treaty remains "in a state of suspended animation."

1 Letter to The Times, March 19, 1923.

2 A detailed account of the correspondence is given in “ Empire Foreign Policy," by J. A. R. Marriott, Fortnightly Review, May 1923.

Meanwhile an important question is involved which apparently has not been solved. The British Prime Minister on March 8th, in reply to a question in the House of Commons, stated that :

"The plenipotentiary who signs a treaty does so as the representative of the King, by whom his full powers are issued, and the Canadian Minister acted in that capacity on the present occasion."

He did not, however, say on whose advice and authority the King issued full powers. Was it on the advice of his Canadian or of his British Ministers? It will be recalled that at the Peace Conference the Dominion representatives were successful in insisting that they should separately and directly advise the King to issue to them their separate authority to sign the various treaties of peace. Accordingly the opinion is widely held both in Canada and South Africa that full powers were given to Mr. Lapointe on the direct authority of the Canadian Ministry. On the other hand, Professor Berriedale Keith in the letter mentioned says:

"It cannot too clearly be understood that full powers can be issued by the King only on the advice and responsibility of the Imperial Government. His Majesty cannot sign such a document save on such advice, and it is wholly impossible that full powers could be issued by His Majesty in any other way."

1

If the treaty were regarded as embracing the whole Empire and not concerned with Canada alone—even before the rider of the United States Senate was introduced-then Professor Berriedale Keith's statement appears to be constitutionally unassailable. But was the treaty so regarded? In the absence of any papers laid before Parliament 1 it is impossible to say. Moreover, who is to decide whether a treaty concerns one Dominion only or is of Imperial concern? These and other questions demand an answer and emphasise the need of an Imperial Conference such as that foreshadowed in the resolution of the Imperial War Conference of 1917 to consider "the readjustment of the constitutional relations of the component parts of the Empire."

MALCOLM M. LEWIS.

ACQUISITION AND LOSS OF NATIONALITY BY MARRIAGE

NEW LEGISLATION IN THE UNITED STATES

By an Act of Congress, approved on September 22nd last, important changes were made in the law of the United States regarding the status of alien women who marry American citizens, and of American women who marry aliens. The Act provides that any woman who marries a citizen of the United States or any woman whose husband is naturalised after the passage of the Act shall not acquire citizenship of the United States by reason of such marriage or naturalisation. She may, however, if eligible to citizenship, be naturalised, and the usual requirements are relaxed in her behalf by waiving the necessity of a

1 It appears from the Prime Minister's reply to a question on March 8th that the Government does not intend to lay the papers connected with the Treaty on the table of the House.