One misses some of the latest British contentions upon the matter of what constitutes evidence of nationality, though there are late cases relating to trading with the enemy. It is, however, refreshing to have references to early writers such as Grotius, Pufendorf, Bynkershoeck, etc., liberally used. Of course, it is not possible to find support for some modern principles in the early writers because the conditions of the seventeenth and eighteenth centuries had not given rise to the problems of later days. The Hague conventions are generally followed as embodying international law. In comparing these with the German Kriegsbrauch it would have been helpful in some instances to insert regulations of other states upon the same subjects. This book, like any issued in the time of war, and in a belligerent country where many questions are still undecided, omits some of the considerations which will influence the ultimate adjustment of differences. The editor frankly admits that some of these recent precedents cannot "yet be considered as part of international law," and of course the reports of even the best newspapers cannot serve for more than an indication of the opinion of the day which may need modification when more complete information is available. In treating of warfare on land there are many references to the methods pursued by the Germans in the present war. Referring to the German complaints as to the use of the Turcos and Indian troops, Dr. Phillipson says, "However, whatever may be said about 'savage' and 'barbarian' troops, the war of 1914 showed that the worst excesses of cannibals and scalp-hunting savages seem less atrocious than the many unspeakable crimes perpetrated by German soldiers" (p. 476). Later is the statement, "In the case of prisoners who have expressly undertaken not to escape, the German Manual allows the death penalty for a breach of parole." The reader should not infer that the regulations of other states do not contain the same provision. Dr. Phillipson (p. 482) says "The German Manual goes further and allows the seizure of all persons whose liberty may be a source of danger to the opposing belligerent, e. g., influential journalists, political personages, priests who might rouse the population. This practice which was adopted by the Germans in Belgium and France during the Great War, is unjustifiable; not only did they arrest the persons indicated, they also seized large numbers of leading citizens and transported them to Germany." The practice may, however, also be supported by the British rule upon the same subject which provides that "the following are liable to be made prisoners: All persons who being at liberty may be harmful to the opposing state, such as prominent and influential political leaders, journalists, local authorities, clergymen, and teachers, in case they incite the population to resistance." This may be an unjustifiable rule of war, but it is fair to acknowledge that it is a rule which appears in the same words in various codes. Doubtless the plea of "military necessity" has been advanced in the present war without good ground, as Dr. Phillipson states. Both parties to the contest seem to have found it a convenient excuse not merely to support action against each other, but also toward neutrals. No support in law can be found for many of these acts, as Dr. Phillipson proves. In the chapters relating to neutrality, one wishes that Dr. Phillipson had given a somewhat fuller exposition of certain important topics, e. g., the present British doctrines of contraband and of blockade. In speaking of The Hague convention of 1907 respecting postal correspondence he asserts, however, that "the possibility of arbitrary treatment that existed before the convention was made was not altogether removed by it." American readers would have appreciated more discussion in regard to armed private vessels and the destruction of prizes. It is convenient, as in this edition of Wheaton, to have the dates given with reference to cases, particularly when there are two or more cases having the same name. On p. 401 it seems to be implied that the Chamizal arbitration was among those settled at The Hague. It seems hardly correct to say "But he [the President of the United States] has no power to enlarge the boundaries of the Union—which can be done only by Congress, the treaty-making power" (p. 521). Appendices contain, Foreign Enlistment Acts, Prize Court Acts, Treaty of Washington 1871, and the Anglo-French Agreement (1904), and are followed by a good index. It is doubtful whether the plan which omits distinguishing marks indicating what portion of the text is actually in Wheaton's own words is satisfactory even if, as Dr. Phillipson says, he "ought perhaps to be regarded as a co-author of this edition of the book, rather than as an editor in the usual sense of the term." Readers will join in the hope expressed by Sir Frederick Pollock in the introduction "that Dr. Phillipson may live to put forth another edition of this book, which will exhibit the custom and ordinance of civilized nations at last clothed with fitting authority, and armed with power to assure the harmony of the world." A Treatise on the Conflict of Laws. GEORGE GRAFTON WILSON. Vol. I.-Part I. By Joseph Henry Harvard University. Cambridge: pp. lxxx, 189. The book, of which the above is only a part of the first volume, promises to be indeed a monumental work on the Conflict of Laws, if one may judge from the care and thoroughness with which the introductory matter contained in this initial publication has been set forth. The author himself explains in the preface his reasons for publishing this small fragment of his work in advance. He says: In publishing this small portion of the treatise on the Conflict of Laws which he hopes eventually to finish, the author is not offering it as a complete piece of work, either in quantity or in quality. To finish the work as planned would be a labor of many years; to master, to think through, and to express one's thoughts on the topics herein discussed is not to be accomplished at the first essay. By publishing these few pages now the author hopes to benefit by helpful criticism, by further study and by more matured thought, and especially by that ocular demonstration of faulty thought and inept expression which seeing one's thought in print alone can give. Other parts are intended to follow from time to time; and when at last the work is complete, it will, it is hoped, include this part in a much improved form. The first chapter of the text is preceded by a general bibliography of the subject, in the compilation of which the author has shown the painstaking thoroughness and accuracy of his scholarship. He has even given the reader the benefit of his advice and suggestions in recommending the books on this subject which should be contained in a well appointed public or private law library. For a public library his list includes about 125 volumes, and for a private one about 65. Within the scope of this review it is not possible to give the complete list of writers on the Conflict of Laws discussed in this bibliography. But as evidence of its completeness it may be stated that he devotes to these authors of various schools and nationalities about 60 pages, as follows: to the early Italian school nearly two pages; to the early French school nearly two pages; to the early school of The Netherlands one page; to the early German writers one page; to the English and American authors eight pages; to the more modern French authors eleven pages; to the German eleven pages; to the Dutch two pages; to the Italian six pages; to the Spanish and Portuguese (including Ibero-Americans) eight pages; and to authors of other nationalities two pages. Eight more pages are devoted to articles, periodicals and collections of cases dealing with the Conflict of Laws. In view of the fact that so far no part of the work has been published except what might be called the introductory matter, perhaps the most interesting single paragraph is to be found in section 10 of Chapter I, where his method of treating the whole subject is briefly outlined by the author. To quote: * will be as follows: "The method of treating the subject * After an introduction, dealing with the nature, history and bibliography of the subject, the general nature of law, of legal rights and of jurisdiction will be considered. This will be followed by a detailed theoretical study of legal rights, in which an attempt will be made to establish the time and place in which legal rights come into existence, the legal effect of acts, and the limits of merely remedial action. As a result of this study, a theoretical conclusion will be reached as to the law by which these rights, acts and remedies should be governed. The remainder of the work will be devoted to a careful study of the positive common law of England and America. The analysis and arrangement of the law adopted in the theoretical study will be followed in this practical part. The first portion of this program has now been accomplished in the publication of the volume before us. There remain to be published the "detailed theoretical study of legal rights, in which an attempt will be made to establish the time and place in which legal rights come into existence, the legal effect of acts, and the limits of merely remedial action," as well as the "study of the positive common law of England and America." In his third chapter our author discusses interestingly "the three principal systems of thought now current" touching the Conflict of Laws. "The first of these," says he, "supposes two independent laws, effective at the same time and place, and subject to a possible choice between them. The second supposes a single set of principles, binding on all nations, by which the need of any choice between two independent laws is prevented. The third asserts that no law can exist as such except the law of the land; but that it is a principle of every civilized law that vested rights shall be protected, and that therefore in each country it is sought to find what rights have arisen anywhere, and to recognize them, applying in all else the law of the land to every question. These systems may for convenience be called respectively statutory, international and territorial." In discussing the first of these, the author considers the two prevailing theories touching the proper law to govern personal relations, i. e., the theory of domicil and the theory of nationality, respectively, and comes to the conclusion that, whatever might be the most appropriate theory for the consolidated empires or republics of Europe, it is necessary that the federalized states of Great Britain and America cling to the domicil as furnishing the law to control such matters. How would it be possible, he suggests, for a citizen of New York or of Scotland to invoke the law of nationality with regard to the status of legitimation or infancy, when the national law of the United States or Great Britain does not deal with those subjects at all, but leaves them entirely to the control of the States or units of empire? His consideration of the respective merits of nationality and domicil as the basis of a personal law leads our author further to the discussion of the doctrine of the renvoi which he sets forth very lucidly in the following language: Wherever the statutory theory is accepted, and the laws of the two states concerned differ as to whether the law of the nation or the law of the domicil shall be applied, a troublesome doubt appears. Where the law of the forum provides that a juridical event shall be governed by a certain foreign law, and that law in turn remits (renvoie) it to the law of the forum to determine by its law, the situation arises which has been termed the renvoi; and this situation has proved puzzling to courts and authors. Suppose, for instance, that a foreigner domiciled in France dies, leaving a will; by the law of his country testamentary capacity is determined by the law of his domicil, by the law of France such capacity is determined by the law of his own country. France sends the question to the law of his country; that law remits it to the law of France, his domicil; and so the question is absorbed into an apparently endless circle. Three courses are open to the law of the forum: 1. To refuse the renvoi, remit the case in turn to the foreign law, and thus engage in a perpetual deadlock. 2. To accept the renvoi and decide the question in accordance with the terms of its own law, on the ground that the attempt to settle it in accordance with the foreign law has failed. 3. To disregard the renvoi and decide the question in accordance with the terms of the foreign law, on the ground that the foreign substantive law alone concerns the question, and there is no submission of the foreign doctrines as to the Conflict of Laws. The second course has its supporters; but on the whole the partisans of the third course prevail. |