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THE GREEN BAG
"I object to the substitution of waiver for election, for it fixes attention, not upon the act that it pretends to describe, but upon a mere consequence of that act. Election is the choice of the orange, and the consequence is that you do not get the apple. But there is no abandonment, or cession, or surrender, or waiver, of the apple, for you never had it, or any right to it. You had a right to choose; you exercised that right; you gave up, or threw away, or waived nothing. The point of the act is the choice, and attention ought to be drawn to the thing chosen, and not ex clusively fixed upon the effect of that choice." Three consequences will follow from the proposed change. The company can no longer win by silence. If it wants to cancel it must do so affirmatively. The assured will be re lieved of the difficult burden of proof of waiver and of the authority of the agent to waive. These facts are in the knowledge of the com pany, and it should sustain the burden of proof. A possible fourth result would be to entitle the assured to a return of a propor tionate part of advance premiums. HISTORY (Ecclesiastical Jurisdiction) AN interesting sketch of the history of "The Ecclesiastical Jurisdiction in England," by Edwin Maxey, appears in the Michigan Law Review for March (V. iii, p. 360). INTERNATIONAL LAW (War. Wireless Telegra phy) IN the March Yale Law Journal (V. xiv, p. 247) Professor Theodore S. Woolsey, under the title of "Wireless Telegraphy in War," treats of a novel condition of modern warfare which presents interesting problems of international law. He explains that in the present war in the East, wireless telegraphy has been used in two ways which are of questionable legality — "to maintain intercourse between belligerent Port Arthur and Russia and to send war news to a London paper rapidly and independent of military control, by the paper's own steamer rigged for the purpose." As to the first prob lem arising out of the erection on Chinese soil of a mast to receive wireless messages from Port Arthur the author cites the analogy of sub-marine cables and says that there seems
to be a tendency to impose on neutrals the duty of preventing the use by a belligerent of a cable landed on the neutral's territory. He contends that the true test in both cases should be whether the communication was originally set up for commercial or military purposes. If the former, the mere fact that it is made use of for military purposes should not oblige the neutral to stop all communication, but the neutral should prevent establishment of such an exclusively military communication as was maintained between Chee Foo and Port Arthur. "The distinction between making use of means of communication already existing, and establishing new ones during war and for war purposes, is the same in kind as the distinc tion between the use of the regular mails and hiring a dispatch boat. A case can hardly be imagined where the privilege would be valu able to both belligerents alike. Being within neutral jurisdiction, the other belligerent has no power of prevention. No commercial in terests are affected. To suffer it, is an unneutral act or service." The danger with respect to the press boat is that essential military information may be conveyed to the other belligerent intention ally or unintentionally, so that of necessity a belligerent should have the right to control such transmission of information from any waters within the war zone. "Our only question here, as it seems to me, should be as to the nature of this control. It might be prohibition; it might be censorship; it might be restriction as to locality; it might be a license system. But that control of some sort is proper, I believe is beyond question." The defects of different suggested methods of restriction are then discussed, and the author concludes: "By process of exclusion, we reason, there fore, that news-gathering by sea, with the aid of the wireless, is of such a nature as to be in admissible in warfare, and to require entire prohibition under penalty of confiscation. It is a service bearing an analogy to the dispatch boat, the submarine cable and the war corre spondent, in peculiar combination. The dis patch boat is guilty of unneutral service in behalf of one combatant and can be confis cated by the other; the submarine cable can
