the correlative jural relation of disability (no-power). Exemption from military service is an illustration of immunity,101 as well as of the privilege of not serving.

Declarations of disability of the defendant, while often combined with declarations of immunity of the plaintiff, are nevertheless emphasized as the principal jural relation in issue when the validity of a state act is contested. Thus, declarations have been sought that particular acts of governmental authorities were ultra vires (i. e., that the authority had no power to create any new legal relations by executing them), e. g., the repudiation of an agreement by the postmastergeneral,402 the issuance of certain forms by the internal revenue officers, 403 the requisitioning of certain services and profits of the plaintiffs, the expropriation of certain land,405 the manner of cancelling certain mining leases by the governor, the method of imposing taxes by local authorities, 407 and the manner of rejecting votes by local officers.408 So also declarations of disability have been sought against the acts of private persons acting under private acts, charters or agreements. Such declarations have been made against the power of employers to make certain deductions from wages under the Truck Act, 1831,0 of school authorities to exclude certain poor children,410 of church authorities to pass a certain sentence of ouster upon a minister," of a corporation to make a certain mortgage and issue certain bonds under it,412 of a dock corporation to promulgate certain regulations under a private act,418 of a stock-exchange committee to

Flint v. Atty.-Gen. [1918] 1 Ch. 216. See also London Assn. of Shipowners v. London & India Docks etc. [1892] 3 Ch. 242: that plaintiffs were not liable (immune) to bear certain unlawful charges assessed upon certain docks they might wish to use.

Marconi's Wireless Telegraph Co. v. Rex (C. A.) [1918] 1 K. B. 193. Burghes v. Atty.-Gen. [1911] 2 Ch. 139, 155; (C. A.) [1912] I Ch. 173. China Mutual Steam Navigation Co. v. MacLay [1918] 1 K. B. 33. Toronto Ry. Co. v. City of Toronto (1906) 13 Ont. L. Rep. 532: although it was not granted, because there was another way of testing the question.

The Silver Peak Mines, Ltd. v. Williams (1917, N. S. W.) 17 St. R. 1. Elsdon v. Hampstead Corp. [1905] 2 Ch. 633; British Fisheries Soc. v. Magistrates of Wick (1872, Scot.) 10 M. 426. See also Atty.-Gen. v. Merthyr Tydfil Union (C. A.) [1900] 1 Ch. 516.

Atty.-Gen. v. Council of the Municip. of Canterbury (1917, N. S. W.) 17 St. Rep. 45.

Williams v. North's Navigation Collieries (H. L.) [1906] A. C. 136.

40 Gateshead Guardians v. Durham C. C. (C. A.) [1918] 1 Ch. 146; see also Ellis v. Duke of Bedford (C. A.) [1899] 1 Ch. 499: no power of the Duke to exclude hucksters from certain market stands.

Frackelton v. Macqueen (1909, Queensland) S. C. 89.

Pacific Coast Coal Mines, Ltd. v. Arbuthnot (P. C.) [1917] A. C. 607. "London Asso. of Shipowners v. London & India Docks Committee [1892] 3 Ch. 242.

exclude the plaintiff from membership." In the absence of any written instrument by which the court can judge the validity or propriety of the acts of those bound by the instrument, declarations of disability have been asked against persons who assumed to exercise powers which did or might injure the plaintiff. Thus, we have seen that reversioners and remaindermen may ask declarations of disability against life-tenants who seek to exercise powers of alienation, etc., which would impair their interests.415

EFFECT OF PECLARATORY JUDGMENT

Declaratory judgments operate as res judicata and bind the parties and their privies within the same limitations as attach to other final judgments. Their force as judgments in rem in cases of status and title to property is fortified by the power of the court, in England, at least, to bring before it any person who may be interested in the matter in issue. They cannot, of course, be executed, a feature which constitutes their principal difference from executory judgments. In the case of those judgments which declare a duty, a new action must be founded on them to convert them into judgments on which execution can issue. But this point is more academic than practical, for it rarely proves necessary to resort to this measure; and in fact, when some executory relief is desired in England, the demand for it is generally incorporated with the request for the declaration. Often, indeed, the negative form of declaratory judgment of privilege or immunity cannot be followed by any form of coercive relief at all, the mere declaration that the defendant has no claim against the plaintiff satisfying all the plaintiff's requirements. Should the defendant, nevertheless, subsequently bring an action, he would be met by the plea of res judicata. The old judgment can only be reopened or impeached in the same manner and under the same conditions as any final executory judgment.

"This declaration was asked, but not granted. Cassell v. Inglis [1916] 2 Ch. 211; Weinberger v. Inglis (1917, Ch.) 118 L. T. 208.

Supra, p. 120, and illustrations (d), (e) and (f) of sec. 42 of the Indian Specific Relief Act. See also (1905) 61 R G, 18, 19: declaration that defendant owners of a certain trademark had no power to request plaintiffs to withdraw their trademark from the market, the point at issue.

"There have been exceptions to this rule: e.g., a decree given ex parte declaring the plaintiff of sound mind was not regarded as res judicata to found an action for damages against the keepers of an insane asylum who had detained the plaintiff as insane, Mackintosh v. Smith and Lowe (1864, Scot.) 2 M. 389. So a judgment where defendants had not appeared was not regarded as res judicata: Hair v. Town of Meaford (1914) 31 Ont. L. Rep. 124. See also (1910) 74 R G, 122.

CONCLUSION

The above survey of the many classes of cases for the solution of which the declaratory judgment has proved an effective instrument will have demonstrated that the courts have not exhausted their usefulness by the employment of their curative functions, but that there remains a large field for the application of their preventive functions which in this country has barely been touched. It will have become evident that the social equilibrium, for whose maintenance law and the courts as institutions exist, is disturbed and impaired by the uncertainty and insecurity of legal relations as well as by their attack and violation. That it is the duty of the state to afford the community and its members protection against this uncertainty and insecurity is also self-evident. Indeed, many of our states have already recognized this fact by furnishing simple methods for the determination of such questions as adverse and doubtful claims of title to property and the construction of wills. The adoption of the declaratory judgment would not, therefore, be an innovation but an extension of a practice which, unconsciously perhaps, has been accepted in isolated instances as a useful aid in judicial machinery. Doubt or hesitation concerning the advisability of fully adopting this important instrument of judicial procedure should vanish before the evidence of its undoubted practical value afforded by the experience of England and of a great part of the civilized world. Its simplicity, its capacity to serve important ends of corrective justice without legal hostilities, its utility in deciding many questions which cannot now be brought to judicial cognizance, its efficacy in removing uncertainty from legal relations before they have ripened into a cause of action-that is, its usefulness as an instrument of preventive justice, a field which has hardly begun to be cultivated in this country, commend the declaratory judgment to the earnest attention of the American bar and of the public which it serves. We might with profit study Order XXV, rule 5, of the rules of the English Supreme Court. While in this country the adoption of such a measure would require legislative enactment rather than the simple English promulgation of a rule of court, the need for the declaratory judgment might be met by our states by the incorporation of an amendment in practice acts or codes of procedure in the sense of the following:

"The [trial] court shall have power in any action or in an independent or interlocutory proceeding, to declare rights and other legal relations on written request for such declaration, whether or not further relief is or could be claimed; and such declaration shall have the force of a final judgment."

FREEDOM OF THE LAND AND FREEDOM OF

THE SEAS

THEODORE SALISBURY WOOLSEY

Professor of International Law, Emeritus, Yale University

During the present war at least three separate demands have been made in a public and formal way that peace must bring with it freedom of the seas.

One of these, formulated by President Wilson as one of his fourteen conditions of peace in an address to Congress of January 8, 1918, after we had been nearly a year at war therefore, was as follows:

"Absolute freedom of navigation upon the seas, outside territorial waters, alike in peace and in war, except as the seas may be closed in whole or in part by international action for the enforcement of international covenants."

A year earlier, while still neutral, in the "peace without victory" address to the Senate, Mr. Wilson had voiced the same demand somewhat differently.

"And the paths of the sea must alike in law and in fact be free. The freedom of the seas is the sine qua non of peace, equality and co-operation. No doubt a somewhat radical reconsideration of many of the rules of international practice hitherto thought to be established may be necessary in order to make the seas indeed free and common in practically all circumstances for the use of mankind, but the motive for such changes is convincing and compelling. There can be no trust or intimacy between the peoples of the world without them. The free, constant, unthreatened intercourse of nations is an essential part of the process of peace and of development. It need not be difficult either to define or to secure the freedom of the seas if the governments of the world sincerely desire to come to an agreement concerning it."

Another appeal for the freedom of the seas came from the Pope. Under date of August 1, 1917, he had written in a peace message "First of all the fundamental points must be that for the material force of arms be substituted the moral force of right"-which is expanded to mean diminution of armaments, and substitution of arbitration for force in determining international differences. Then he resumes: "Once the supremacy of right has thus been established all obstacles to the means of communication of the peoples would disappear by assuring, by rules to be fixed later, the true liberty and community of the seas, which would contribute to ending the numerous

causes of conflict and would also open to all, new sources of prosperity and progress."

And lastly frequent official German references have been made to the same subject. These, however, have been so often coupled with demands for coaling stations, naval bases and other naval assets as hardly to conceal the German desire to control the seas rather than to free them.

What does the catching phrase "freedom of the seas" mean? In none of the demands is it defined. In time of peace complete freedom of the seas already exists, construed that is as the unrestricted navigation of waters other than territorial. The reputed division by Pope Alexander VI of the South Atlantic between Spain and Portugal, Great Britain's old claim to suzerainty over the narrow seas, even her claim to search on the high seas for the suppression of the slave trade without treaty permit, all these have long since passed away. In fact most of the straits and navigable rivers of the world have been opened to the free navigation of all. When our own country claimed exclusive jurisdiction over the seals as free swimming animals in the Behring Sea, it was an anachronism and a Court of Arbitration properly found against our claim in 1893. It is in time of war, then, solely that the seas are not now free.

The restrictions upon their freedom are such as century-long controversies and compromises between neutral and belligerent, have gradually brought about: blockade, capture of contraband, seizure of ships engaged in unneutral service and of enemy's trade, and, as developed in the present war out of the slight precedent of the RussoJapanese war. the war-zone theory, in accordance with which one state warns others that great tracts of sea are appropriated for war purposes and that the neutral must keep out. It must be these then or some of these which all the demands referred to desire to abolish, for otherwise the seas are already free and "freedom of the seas" is a meaningless phrase.

As to blockade, the seizure of contraband, the prevention of unneutral services like carying dispatches or troops by the neutral, unless war at sea is abolished altogether, there seems to the writer no question of their fundamental justice.

By blockade the superior naval power cuts off his enemy's resources for carrying on war, as the North did to the Confederacy in our Civil War-without which measure the result of that war might have been quite different. By the search for and seizure of contraband, that is, of military materia, largely interpreted, the same superior naval power prevents his enemy from helping himself to such necessaries in the markets of the neutral world. This is the advantage which his superiority gives him.

As to the capture or destruction of an enemy's merchant ships and trade, however, there may be two opinions, and our own consistent