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BOOK REVIEWS

The Relation of International Law to the Law of England and of the United States of America. By Cyril M. Picciotto, with an Introduction by L. Oppenheim, LL.D. New York: McBride, Nast & Co. 1915. pp. 128.

This is a university essay,-the "Whewell Scholarship dissertation," presented by a Whewell Scholar in International Law at Cambridge. It is printed in handsome form, and worthy of it. The main thesis is that international law is not, in any sense whatever, a part of the common law of England, but merely a source of law (pp. 22, 105). Lord Mansfield's often cited remark in Triquet v. Bath 1 is regarded as essentially qualified by Lord Alverstone's opinion in West Rand Central Gold Mining Co. v. The King 2 (p. 102).

1

Since the middle of the last century, it is maintained, the British courts have regarded international law as something of which the courts do not take judicial notice. If relied on as to any particular point, it must be proved to exist, in the form so claimed. Such proof will not be merely of an historical character, but may embrace the writings of jurists of authority (pp. 90, 121). The author recognizes three schools of opinion, as to the real nature of international law, the Naturalists, who view it as a body of moral rules; the Positivists, who treat it as reflection of the life of the civilized nations which accept it; and the Grotians, whose position, however, he does not undertake to describe (pp. 14, 76). As between the two schools first mentioned, "the Positivistic has almost completely taken the place of the Naturalistic School" (p. 100).

In the introduction to the volume, Professor Oppenheim rejects the claim made by some Continental jurists, that it is a maxim of jurisprudence that "international law in every case overrules municipal law" (p. 9). On the contrary, he would view them as separate branches of the tree of law: one derived from international customs and agreements; the other from local customs and statutes; so that the municipal law of a country cannot be judicially extended to include anything 1 1764, 3 Burr., 1478.

21905, 2 K. B., 391.

established by international law, which has not been at least tacitly adopted by such municipal law (p. 10). He deduces from our rule that an Act of Congress can repeal a treaty provision, the corollary that international law and municipal law are with us of equal force (p. 122). Is this true of the States? Can a State legislature assume to repeal a principle of international law? And when Congress abrogates a treaty provision, does it thereby detract from the authority of international law? It has simply broken a bargain and made a precedent which may be of importance in future modifications or definitions of that law. It is worth remembering that the Federal Court of Prize Appeals, as early as 1781, held that the municipal laws of a country cannot change the law of nations so as to bind the subjects of another nation.3

Reference is made to the fact that after Jay's treaty removing the disabilities of aliens as to holding real estate, England had to pass a statute in confirmation. The United States did not. "This difference might seem to imply that the rule of international law requiring that treaties shall be observed was incorporated in the law of the United States though not with that of England. But it is not so. The difference is merely that the Executive possesses in the United States a power of making law by treaty not paralleled in England" (pp. 60, 116). But the President of the United States simply initiates treaties. They have no legal force whatever until ratified by and with the advice and consent of the Senate. He stands here just where, according to Maitland, the King of England stands (p. 62).

Whether international law be binding in England, or not, on national legislatures, treaties are on prize courts, and a very recent decision of the Court of Appeal is cited accepting that position as to the Hague Convention of 1907 on the laws and customs of land warfare (pp. 73, 125).

Sir William Seott is frankly criticised for his well-known statement, in the case of the Fox, in 1811, that a British prize court is bound to administer the law of nations, and bound equally to enforce Orders in Council, because they are presumed to conform to that law. It is challenged as "erecting a violent presumption" of harmony by "a pure legal fiction" (p. 35). The proper rule for a prize court in case of such a conflict, in Mr. Picciotto's view, would seem to be that there is no power inherent in the royal prerogative to legislate for it, so as to debar it from executing the precepts of international law as to prize

3 Miller v. The Resolution, 2 Dall., 1, 4.

cases (p. 47). That is only for Parliament (p. 50), and to Parliament, in such a case, the court must bow (p. 54). As to this point, he seems rather to overstrain the meaning of Marshall's observation, in Murray v. The Charming Betsey, that an Act of Congress "can never be construed to violate neutral rights, or to affect neutral commerce, further than is warranted by the law of nations, as understood in this country" (p. 119). This is explained by the preceding statement of the Chief Justice, in the same sentence, that such an Act ought never to be construed to violate the law of nations "if any other possible construction remains."

In regard to a British Order in Council affecting the rules of decision in prize cases, the author goes no farther than to say that, being only an exercise of a royal prerogative, it would "seem" as such to have a field narrower than that of an Act of Parliament (p. 47).

The assent of Parliament is regarded as practically necessary to secure the enforcement of any treaty in the ordinary courts (pp. 94, n. 107, 125).

The author recognizes three divisions of international law,,-that which is assented to by all nations, that which is assented to by an important part of them, and that which has been assented to by a small number only (p. 16). It may well be questioned whether the second and third classes are inherently law at all. They seem rather law in the making.

SIMEON E. BALDWIN.

Diplomatic Protection of Citizens Abroad: or the Law of International Claims. By Edwin M. Borchard. New York. The Banks Law Publishing Company. 1915. pp. xxxvii, 988.

As but few books have been heretofore written upon the subject matter covered by the work under review, it is but scanty praise to say that this is the best of them.

In standardizing any American book on any branch of international law, one instinctively turns to the incomparable works of Mr. John Bassett Moore, the Digest of International Law and the History of International Arbitrations,—which constitute at once the most elaborate and able treatises which America has produced upon international law and also the original sources of a great bulk of material, the actual 42 Cranch, 118.

original papers of which are beyond the reach of the ordinary private citizen. However, Mr. Moore, in his Digest, covered the entire field of international law and he would have been unscientific and would have gone beyond the purpose and scope of his work, had he attempted to deal with the minutiae of international claims.

In his International Arbitrations, Mr. Moore evidently aimed not so much at preparing a general treatise on international claims, as at producing a work that should make available the otherwise inaccessible records of international arbitrations, particularly those to which the United States has been a party. Of necessity this purpose so limited the scope of the work as to put out of view a consideration of the diplomatic adjustment and settlement of claims save as these matters might be incidental to particular cases which were ultimately arbitrated. There have moreover been a number of important arbitrations since the work was prepared.

The report of Mr. Lawrence "The Law of Claims Against Governments, including the mode of adjusting them and the procedure adopted in their investigation" contains material that is valuable, but it was written with a particular purpose in mind, and it is no more than the usual government document,-a heterogeneous, unclassified mass of material.

Mr. Ralston has given us a comparatively small but well conceived and written Résumé (as he terms it) of International Arbitral Law and Procedure, but this obviously deals with only one phase of international claims. Our present author has undertaken the larger and more ambitious task of covering the whole field of international claims. In his work and that of Mr. Ralston, is to be found certainly the greater part of the law and existing precedents and authorities relating to this particular branch of the law of nations. The two works are more or less complementary, the one to the other.

The most cursory examination of the work under review demonstrates the immense amount of labor which its author performed in its preparation, and even a partial reading of the text brings the assurance that the matter has been carefully and thoughtfully treated.

The work is divided into four parts and each part is separately and independently divided into chapters. Part I deals with the "Relation Between State and Citizen, Between State and Alien, and Between State and State," and the various chapters thereunder are "The Alien"; 'Municipal Responsibility of the State"; "International Responsi

bility of the State"; (generally and as to the "Acts of Individuals," "War Claims," "Contractual Claims," and "Denial of Justice"); and "Rela-" tion between States." Part II deals with "The Exercise of Diplomatic Protection" and is divided into chapters dealing with "Nature, Basis, and Theory of Protection"; "Relation between the Private and the Public Injury"; "Government Control over Claims"; "Distribution of Awards and Indemnities"; "Extent of Protection"; and "Means of Protection." Part III covers "The Object of Protection-The Person and Property of Citizens" under the chapter heads, "Citizenship the Primary Title to Protection;" "Proof and Evidence of Citizenship"; "Naturalization and Other Titles to Citizenship or Protection"; "Effect of Various Legal Relationships"; "Successors in Interest and Beneficial Owners." Part IV, dealing with the "Limitations on Diplomatic Protection" has for its chapter headings "Conditions Prescribed by the Claimant's Own Government"; "Forfeiture of Protection by Act of Citizen (including "Expatriation," "Censurable Conduct of the Claimant," "Renunciation of Protection," and "Failure of Proper Recourse to Judicial Remedies"); "Limitations Arising out of Subject-Matter and Political Considerations"; and "Limitations Arising out of Municipal Legislation of the Defendant State."

It will be thus observed that the book covers a very wide range. The method of treatment is a discussion of principles and cases, a statement of conclusions, all supplemented and enforced by citations of numerous authorities (cases and treatises). The book thus constitutes not only a treatise, but also a mine of material, both for the student of international law and the lawyer practicing in that field.

Of course, no international lawyer, even the author himself, is likely to regard the book as perfect, and every lawyer would probably have done some part of the work in a different way or would have treated some of the various subjects from a different angle, and possibly, at times, with a different fundamental theory.

For example, the author, supported by not a few authorities, draws a quite positive distinction (p. 283) between government contracts for the paying of money for money furnished to the government, and contracts for the paying of money for goods furnished to the Government, -he considering the latter enforceable, the former not. It is certainly true of Anglo-Saxon law, and probably of other systems also, that no distinction is to be taken between a man's promise to pay money for money which he has received and his promise to pay money for goods

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