but such discontinuance is not to affect the right, if any, of the claimant to costs and damages. This again contemplates that in an action for condemnation the claimant may have a right to costs and damages and, as the Crown is the only proper plaintiff in such an action, to costs and damages against the Crown.

Order XIII is concerned with releases. They are to be issued out of the registry and, except in the six cases referred to in Rule 3, only with the consent of the judge. One of the excepted cases is when the property is the subject of proceedings for condemnation—that is, of proceedings in which the Crown by its proper officer is plaintiff, and when a consent to restitution signed by the captor (again by the proper officer of the Crown) has been filed. Another excepted case is when proceedings instituted by or on behalf of the Crown are discontinued. By Rule 4 no release is to affect the right of any of the owners of the property to costs and damages against the "captor," unless so ordered by the judge. In the cases last referred to "captor" must again mean the proper officer who is suing on behalf of the Crown.

Order XLIV deals with appeals, and provides that in every case the appellant must give security for costs to the satisfaction of the judge. In cases of appeals from a condemnation or in other cases in which the Crown by its proper officer would be a respondent, this provision could serve no useful purpose unless costs could be awarded in favor of the Crown, and if costs can be awarded in favor of, it follows that they can similarly be awarded against the Crown.

It is to be observed that unless the judgment or order appealed from be stayed pending appeal, Rule 4 of this order contemplates that persons in whose favor it is executed will give security for the due performance of such order as his Majesty in Council may think fit to make. Their Lordships were not informed whether such security was given in the present case.

In their Lordships' opinion, these rules are framed on the footing that where the Crown by its proper officer is a party to the proceedings, it takes upon itself the liability as to damages and costs to which under the old procedure the actual captors were subject. This is precisely what might be expected, for otherwise the rules would tend to hamper claimants in pursuing the remedies open to them according to international law. The matter is somewhat technical, for even under the old procedure the Crown, as a general rule, in fact defrayed the damages and costs to which the captors might be held liable. The common

law rule that the Crown neither paid nor received costs is, as pointed out by Lord Macnaghten, in Johnson v. The King (20 The Times L. R., 697; [1904] A. C., 817) subject to exceptions.

Their Lordships therefore have come to the conclusion that in proceedings to which, under the new practice, the Crown instead of the actual captors is a party, both damages and costs may in a proper case be awarded against the Crown or the officer who in such proceedings represents the Crown.

The proper course, therefore, in the present case is to declare that upon the evidence before the President he was not justified in making the order the subject of this appeal and to give the appellants leave in the event of their ultimately succeeding in the proceedings for condemnation to apply to the court below for such damages if any, as they may have sustained by reason of the order and what has been done under it. Their Lordships will humbly advise his Majesty accordingly, but inasmuch as the case put forward by the appellants has succeeded in part only they do not think that any order should be made as to the costs of the appeal.

BOOK REVIEWS

Jurisdiction et Droit International Public. By L. Van Praag. The Hague: Librairie Belinfaute Frères. 1915. pp. 579.

Dr. Van Praag has produced a volume, of somewhat more than six hundred pages, quarto, upon the interesting and difficult topic of "Jurisdiction and Public International Law." His treatment of the theme is often more philosophical than legal or professional. Reason plays a large part, though precedent and authority are not neglected. He apologizes for his inability to read the Slavic, Italian, Spanish and Scandinavian writers on this subject and for their consequent omission from his citations, but he has made extended use of the French, English, German, Dutch, and Latin authors, as well as those of this country. Often he gives more than half of his pages to extracts and citations from these texts.

He says in his preface that a juridical work is not made to please but to convince, and that it ought not to fear being dull in order to be convincing. Accordingly he adopts an intricate, parenthetical style, which though often laborious, enables him to make minute distinctions and to enumerate exceptions with scrupulous care.

His analytical table of contents is full and systematic, covering twenty pages, and in it are found discussed many subjects which are of present interest, as "What is a ship of War?" (pp. 499-500).

He greatly amplifies the topic of "Exterritoriality" as affecting Jurisdiction, going into many details as to sovereigns, princes, ambassadors, diplomatic representatives of all sorts and their entourage, government ships and their equipage, as well as government aërial craft of all sorts with their equipage. As to these last, he finds no customary rule yet established, but he discusses and discriminates the analogies.

The work is one of great industry and research and considerable subtlety. It must be welcomed as a serious and laborious attempt to solve the many jurisdictional problems which confront and often baffle the international lawyer and publicist in the matter of jurisdiction. The topics considered, are not such as can be discussed dogmatically or concerning which hard and fast rules, fully crystallized and accepted,

can be discovered and displayed. The discussion by Dr. Van Praag is habitually fair, ingenuous and ingenious, and supported by adequate learning and reference to the authorities.

His work must therefore be received as a brave and honest attempt to guide us through the fog which still obscures many questions of international jurisdiction. It is distinctly useful, though it does not wholly dissipate the fog.

CHARLES NOBLE GREGORY.

Science et Technique en Droit Privé Positif. Seconde Partie. Elaboration Scientifique du droit positif. By François Geny. Paris: Recueil Sirey. 1915. pp. xi, 422.

The concept Natural Law is a permanent possession of the moral and juridical world. Since the first speculations on the nature of law and justice up to the present day, there never has been a moment when the idea of Natural Law in one or more of its chameleon colors has not been a factor of thought and action. Truly, there have been periods when it has seemed, under the weight of assault, that the vitality of the Natural Law concept had been crushed to death; but just so often as its epitaph was being carved, it has reappeared beyond the sacred precincts of the charnel-house, either in its old or in a new form, reinvigorated with a disconcerting resistance to the predatory instincts of rival theories of law. It has thrived by assaults and battles. It is not merely a never-ending dream of mankind, as Windscheid put it; it is a perpetual article of faith.

In a review of the first part of the present work for this JOURNAL in July, 1915, the learned author's definition of law is found to contain as an essential element, the idea of Natural Law. In order that the reader may not be misled, the author now boldly asserts in the emphasis of italics that "Natural Law reduced to its necessary minifurnishes an indispensable basis for truly scientific treatment of positive law." In an earlier work the author was committed to the statement that Natural Law is an idea too vague to serve as a working-basis for positive law. Apparently, on this proposition, there has intervened something of a change of position.

mum

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Reduced to ultimate terms, there are two primary views of justice (which is the crux of all legal philosophy): first, that positive law itself is the sole standard of justice; second, that positive law is not the sole standard of justice. As to the first view, there are two sorts of schools

of thought: (a) the positive view which asserts, by virtue of the nature of positive law as a natural or biological product, representing the conscious compromise or the unconscious adaptation of conflicting human interests, that positive law arises as a kind of social precipitate which itself represents the wisdom of the race; (b) the negative view, which, without any philosophical examination of its data, accepts positive law as all-sufficient, and which, therefore, inquires no further. It is manifest that each of these theories of justice embraces diverse minor programs. Illustrative of this point, are the Imperative and Historical Schools which are especially familiar to the Anglo-American world, and which, in the above classification, are types of the negative philosophical aspect of the first attitude toward the concept of justice.

The second point of view is, likewise, a complex of many subordinate positions. These positions may be divided into the following leading groups: (a) The view that all positive law is an artificial interference with the natural process of struggle and conflict in life and therefore philosophically unjustifiable; (b) that positive law is validated by an external, objective standard of justice; (c) that positive law is just or unjust as measured by a subjective criterion; and (d) that the justice or injustice of institutions of positive law is determined by a transcendental

measure.

A book review cannot conveniently be made the means of a fortified philosophical thesis, and much less a treatise; but it may be pointed out that Natural Law may mean all things to all men. This perhaps accounts for the fact that from the Sophists to Geny there have appeared in the world nearly as many varieties of Natural Law as there have been writers on legal philosophy. The "might is right" of Spinoza, the categorical imperative of Kant, the unfoldment of the Völksgeist of Savigny, the "what is real is rational" of Hegel, the compromise of interest of Merkel, the social utilitarianism of Jhering; all these and can anything in legal-philosophical theory be omitted?-are varieties of Natural Law. Natural Law thus becomes nearly synonymous with legal philosophy; and, in point of fact, it was, it seems, until recent years, the custom to label the course of legal philosophy in German law schools as Natural Law.

However, since the inclusive species of Natural Law of the eighteenth century has been thoroughly battered in the breach, a genuine and far-reaching improvement has overtaken the speculations on justice. Natural Law in the present age, with only one important exception