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The author takes the familiar distinction between political intervention and non-political intervention, saying that the former "results more especially from disagreements between the sovereign powers as to acts or policies affecting the dignity or the security of the opposing state or the general body of states," and that the latter "results, in the first instance, from the protection of citizens in some manner." To political intervention he devotes a chapter of about forty pages, and to nonpolitical intervention, under the heads of protection of citizens, denial of justice, protection of missionaries, collection of contract debts, protection of humanity, persecuted Jews, and right of asylum, a chapter of about fifty pages. Then follows a chapter of about fifteen pages on "special forms of intervention," namely, recognition of belligerency, recognition of independence, recognition of insurgency, unneutral service, good offices and mediation, and consular and international courts. Then comes a chapter of about forty pages on non-intervention, under the heads of policy of the United States, policy of Europe in the Americas, and policy of Europe at home. The general discussion then concludes with a chapter of about twenty pages entitled "observations and conclusions." Then follow two chapters of about thirty pages each on intervention in Mexico and interventions in the European war. appendix presents the neutrality proclamation of President Wilson, the correspondence of Senator Stone and Mr. Secretary Bryan on neutrality, and a bibliography, which does not purport to be complete.
The total result is a presentation much longer than that found in general treatises on international law and much briefer than that given in the numerous extracts found in the first three hundred and sixty-six pages of the sixth volume of Moore's International Law Digest. The book appears to be intended for the general reader, rather than for the student or the expert. It is surprising to read that "the United States intervened in Mexico in 1846" (p. 10); and the surprise is not removed by the explanation that "a state may intervene to regulate the internal affairs of another which, by reason of neglect or incapacity, has not controlled its citizens from doing damage or involving the internal security of the intervening state," and that "the fact that the Mexican Government allowed or ordered part of its military force to cross that boundary resulted in a skirmish between the armed forces of the two nations, and was a direct violation of territorial sovereignty from the American viewpoint, threatening the self-preservation of at least a portion of the country" (p. 24). Yet as the United States certainly did
interfere with the external affairs of Mexico without Mexico's consent, the case like any other war-must be admitted to come within the author's definition. It is more difficult to bring within any definition of intervention the accidental descent of a German airship upon a French parade ground in 1913 and the French seizure of the airship (p. 25). If, however, the author has now and then treated as within the term intervention a case belonging elsewhere, the general reader will not complain and the expert will not be harmed. Indeed, perhaps it is well for the reader to discover thus that the word seems not to have a definite meaning and that the doctrines surrounding it have not yet been reduced to a science.
Internationales Privatrecht. By Ernst Zitelmann. Munchen: Duncker & Hunblot. Vol. II. 1912. pp. xxxiv, 1025.
We have at last before us the concluding part (pages 609 to 1025 of Vol. II) of Professor Zitelmann's work on the Conflict of Laws. Volume I made its appearance in 1897; pages 1 to 608 of Volume II followed in 1903 and the rest in 1912.
The author's sole aim in this work was to establish a sound theoretical basis for the conflict of laws and to show the application of the principles thus developed to the solution of the problems arising in this branch of the law. He did not intend to write a treatise on the conflict of laws of Germany, nor a complete treatise on the conflict of laws in general. If the author had had in view the latter object, he should have added, he says, three other parts, devoted, respectively, to the conflict of laws of Germany, to the conflict of laws of other countries, and to the history of the conflict of laws.
Professor Zitelmann had become satisfied that no sound basis for the conflict of laws and no general principles, entitled to universal approval, could be found from a study of the existing systems governing the conflict of laws in the various countries, for the reason that these systems themselves in the last analysis rest upon theoretical considerations rather than upon conceptions of justice, and that a solid structure, therefore, could be erected only by a process of deduction from fundamental principles. The difficulty, however, is that none of the prevailing theories are adequate to furnish a secure foundation, for all of them, not excepting v. Savigny's theory concerning "the seat of the legal relationship," which has found so much favor, are based, in the opin
ion of our author, upon mere assumptions and not upon principles that can be proved to be correct. But if the science of the conflict of laws is to emerge from the confusion which the many theories and systems have created, a legal basis must be found whose correctness will be admitted by all. According to Professor Zitelmann international law alone can furnish such a basis. It is only if all will look to international law as the source from which the principles of the conflict of laws must be derived either directly or indirectly, that the aim of the science, to bring about uniformity of decision in private litigation irrespective of the country in which it may arise, can be attained. From this viewpoint it follows naturally that the rules of the conflict of laws cannot be more fixed than those of international law upon which they depend, and that, therefore, in matters concerning which the rules of international law are not yet crystallized, those of the conflict of laws cannot be definitely ascertained.
Professor Zitelmann arrives at the following basic principle: "Private rights can be created with a well-founded claim to international recognition by that state only which possesses the general governmental control, recognized by the principles of international law, over the object with respect to which the subjective private law confers authority; and that state alone can revoke such private rights again" (Vol. I, p. 68). This principle is developed in the first part of Volume I and is followed by a consideration of the extent of jurisdiction with respect to persons and things, the conflicts arising therefrom, the effect of a change of nationality or domicile, of a plural nationality or domicile, of an absence of nationality or domicile, and of treaties, upon the different rights involved.
And what is the binding effect of the principles thus found? Being derived from international law they bind, according to Professor Zitelmann, in the nature of things only the states and not the inhabitants thereof; they obligate the states to give effect to them through legislation, but until this is done they are not rules of municipal law. In the opinion of Professor Zitelmann these rules should be deemed, however, to have the force of subsidiary law, in accordance with the presumptive intention of the states, and to be applicable, without direct legislative sanction, whenever there is a gap in the municipal law concerning the conflict of laws.
Our author distinguishes, therefore, sharply between those rules of the conflict of laws which have been enacted in a given state (Innerstaatliches Internationales Privatrecht) and the rules derived from international law
(Überstaatliches Internationales Privatrecht). In case of conflict the former must, of course, prevail in the enacting state.
The second part of Volume I takes up the "innerstaatliches" private international law and considers such topics as renvoi, the controlling effect of the will of the parties, public policy, and procedure.
The third part is entitled "Interlocal Private Law" and deals with the application of the principles of the conflict of laws in states where there is no uniform law governing all branches of private law.
Volume II contains the application of the general principles developed in Volume I. As the author is solely interested in showing the operation of his method, he does not deem it necessary to cover the entire field of private law. He omits, therefore, the subject-matter contained in the German Commercial Code and the Bills of Exchange Act and limits himself to the fields covered by the Civil Code. Originally he planned to deal also with the law of patents and copyright but this plan was abandoned in the end. In his treatment Professor Zitelmann follows the order of the Code and in the "General Part" deals with the different kinds of subjective rights, Persons, Things, Legal Transactions and the Protection of Rights, and in the "Special Part," with the Law of Things, the Law of Obligations, the Law of the Family, and the Law of Inheritance.
As to the merits of the work, it must be said at the very outset that it is a really great work. It possesses great originality, follows no beaten trail, but hews its own way through the maze which the many different systems and divergent theories concerning the conflict of laws have created. As the object of the work is the development of the author's personal viewpoint rather than the writing of a general treatise, he does not deem it worth while to give detailed references to the positive law of Germany or other countries, nor to the juristic literature upon the subject, both of which are considered only to the extent that the principal aim of the work seemed to justify. In this respect the work presents a sharp contrast to that of the late Professor v. Bar.
Throughout the work one is struck by the author's power of legal analysis, of clearcut definition, of precise statement, and of logical deduction. Having found international law to be the source of the rules of the conflict of laws, he derives from its recognized nature the fundamental rules and deduces from them in turn sub-rules and corollaries, making clear all the while the relationship which each rule bears to the other and to international law. In this manner he builds up a beautiful
system in which each part appears to be carefully correlated to the other. The superstructure having been erected, the author distributes the interior furnishings with skill and judgment. He traverses the entire field covered by the Civil Code and assigns to each element, rule, or institute its proper place in his system of the conflict of laws. In this part of the work, as in the preceding, the author seizes intuitively, as it were, upon the very central idea underlying the subject in hand and unfolds therefrom, with consummate skill, the consequences which in his opinion logically and inevitably follow. The work is in all respects a typical example of German legal scholarship at its best. Were Professor Zitelmann not known by his other writings, the present work would be sufficient to rank him with the foremost German jurists of to-day. In the history of the conflict of laws it must be placed alongside the famous treatises on the subject by v. Savigny and v. Bar. As a master of the technique of the law Professor Zitelmann is without a rival in the whole literature on the subject.
The broad foundation of the work, its liberal point of view, clear analysis and wealth of new ideas cannot fail to make it one of the most influential works on the conflict of laws. Although it is not a practical treatise, it throws such a flood of light upon all problems in the conflict of laws that the judges and lawyers of all countries should find it very helpful. It is written, moreover, in such a simple style that it can be read with genuine pleasure.
ERNEST G. LORENZEN.
The Collected Papers of John Westlake on Public International Law. Edited by L. Oppenheim, M. A., LL. D., Whewell Professor of International Law in the University of Cambridge. Cambridge: University Press. 1914. pp. xxix, 705.
Dr. Westlake, who might well be considered the "DOYEN" of English publicists in international law, both public and private, died April 14, 1913, after a long life of great distinction and usefulness. Shortly after his death the first edition of his Chapters on the Principles of International Law being exhausted, the Syndics of the University Press resolved to publish a collection of all his lesser contributions to public international law, embodying therein a new edition of these "chapters."
With the consent of Mrs. Westlake, Dr. Oppenheim, who succeeded Westlake in the Whewell Professorship, undertook the editorship of this compilation.