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Conciseness and brevity are not among its merits, and it is not clear that these qualities have been sacrificed to any higher end, or that clarity and charm have been achieved.
A very considerable part of the essay is devoted to the support of the thesis that the rules by which one nation adopts and applies the laws of another to govern certain relations, for example, the status of subjects of that foreign nation, or, more particularly, the existence and powers of foreign corporations or artificial entities, are not properly speaking rules of private international law, but are in real fact an adoption or writing into the municipal law of the nation of sections of a foreign statute, to be applied to the particular conditions indicated. Thus, no law can in truth have any operation beyond the borders of the state which enacts it; if it appears to have such operation it is because the second nation has reenacted the same provision (not perhaps explicitly but by effect of a general rule) to govern in certain circumstances.
This is, of course, an admissible position, and the conception may have its value, but it seems to be more a point of view than a principle, and in any case if the point, which, as stated, takes up a large part of the essay, had been either assumed or ignored, there is little reason to think that the succeeding section, which alone has any reference to the title, would have been essentially different.
The gist of the Code provisions to which reference has been made is that companies duly constituted in a foreign country, and which establish in Italy a secondary place of business or representative agency, are made subject to the prescriptions of the Code as to the filing, recording, posting and publication of the articles of incorporation and by-laws, of amendments introduced into them, and of regular balance sheets: and that the names of the persons directing or managing such branches or agencies must be duly published. Failure to comply with these dispositions incurs certain penalties prescribed for domestic associations and particularly makes the directors and representatives liable jointly and severally for all corporate or partnership obligations. Finally all partnerships, general or special, must file their articles of copartnership in the proper Court of Commerce.
The questions of construction which Professor Marinoni raises and decides in general with entire good judgment and legal sense are of such a nature that when they present themselves in practice they will probably be determined by administrative officers or by judges without great regard to the theoretical foundations which are here laid down
with so much care, and rather on grounds of practical utility and broad principle. It may be fairly said that just on that account there is more reason that the work on foundations should not be neglected: and in the Latin countries at all events, the balance is fairly preserved between the conception of law as the result of a mass of judicial decisions and law as a deduction from eternal principles. Perhaps the countries deriving from the English law incline too much to the first conception. At all events it is safe to say that in the United States such studies as the one under review, unless of entirely exceptional quality, could not be expected to produce any practical effect, direct or indirect. This is perhaps not true in the same degree of Italy or the Latin countries generally: but what is certain is that there the legal mind busies itself with the laws and principles of jurisprudence to an extent that is unknown with us, and this activity and interest must appear admirable even when its results may be thought comparatively unimportant.
Foreigners in Turkey: Their Juridical Status. By Phillip Marshall Brown. Princeton University Press. 1914. pp. vii, 157. $1.25.
It is believed that international law is best treated in monographical form. It is too much to ask that ordinary persons should be familiar with international law as a whole and in all its details, and to write with equal ease and accuracy upon the system and all of its parts. Now and then students who feel attracted to a particular field are minded to treat it at length and in tender detail. The result may and will be very valuable, if in addition to academic familiarity with the subject the writer has had practical experience. It is to be hoped that persons interested in international law in this country will follow the good example set by Professor Brown in the little book under consideration, who has treated the very difficult and complicated subject of the juridical status of foreigners in Turkey with that ease and grace and persuasiveness which can only happen when theory and practice go hand in hand. Professor Brown was Secretary and Chargé d'Affaires of the American Embassy in Constantinople, and was called upon to consider practically and professionally the questions which he discusses in his attractive and very enlightening monograph.
The monograph consists of five chapters dealing respectively with the origin of the rights of foreigners; the Capitulations; the juridical rights of foreigners (Chapters III and IV); and the immunities of jurisdiction
and international law. The appendix contains the regulations of June 18, 1880, enforced in the Consular Courts of the United States in the Ottoman dominions, and a selected bibliography; and the work itself closes with a very serviceable index.
The subject of Professor Brown's book is highly technical and appeals to a special and therefore a limited class. The discussion, however, is general, and of interest to anyone who cares to see how the relations of foreigners in a country of different civilization, ideals and methods of procedure, have been arranged and determined.
Professor Brown's chapter on the origin of the rights of foreigners, which he prefixes as an introduction, is very enlightening, as it shows how alien peoples coming together have been allowed to retain their laws and to have their actions tested by them; that is to say, how law was regarded as personal, traveling with the person and controlling his actions, instead of territorial, in the Anglo-Saxon sense of applying to all persons irrespective of nationality within the political boundaries.
The examples which Professor Brown cites show it to have been the custom in the Orient to grant immunity to foreigners; that the conqueror of Constantinople followed the practice instead of having it imposed upon him, and that he was especially inclined to do so by reason of the difference between the law of the Koran applying to Mohammedans and the laws of non-Mohammedan countries. "The essential fact," Professor Brown says, "to be noted is simply that the Turks in the midst of a great triumph spontaneously and generously recognized the right of the conquered to be governed by their own laws and customs in matters held sacred by the Moslems, as well as in matters not of vital concern to the state" (p. 23). And he concludes his first chapter with a paragraph which deserves quotation, as it not only shows Professor Brown's point of approach, but also his sympathy with that much despised and hard pressed person, the unspeakable Turk:
Whatever may have been the reasons and motives guiding the Ottoman Turks in their policy towards their non-Moslem subjects, whether of tolerance, statesmanship, or practical necessity, it is sufficient for the purpose of determining the origin and nature of the exterritorial privileges of foreigners in Turkey, simply to note in this connection that, without the aid of powerful armies or battleships, the Christians and other subjects of the Sultan received extensive immunities of jurisdiction resembling in certain respects those subsequently granted to foreigners (p. 24).
Passing to the question of Capitulations, Professor Brown calls
attention to the confirmation, only a few days after the capture of Constantinople, of the exterritorial privileges previously enjoyed by the Genoese of Galata under the Greek Emperors. And on this point he says:
It is of special interest to note that the political and commercial privileges conceded to the inhabitants of Galata were quite analogous to those granted to the merchants of Genoa by the Sultan of Egypt in 1290. In other words, the confirmation by Sultan Mohammed of the ancient privileges enjoyed by the Genoese under the Greek Emperors, was not merely a special, isolated act of a novel character, or the recognition simply of an old custom which the Turks by reason of their reverence for custom in general might have felt constrained to recognize. It was rather the acknowledgment of the general practice of the times,—a conformity to the accepted rules of international intercourse (p. 28).
If, however, the act of Mohammed the Conqueror can be regarded as a domestic act in confirming the rights of the Genoese, the recognition of the rights of the Venetians within a year thereafter [April 15, 1454] can only be regarded as an international act, because the rights of the Venetians resulted from a treaty concluded at Adrianople, and Professor Brown considers this treaty as of very great importance as "the precursor, if not the prototype, of those later agreements between Turkey and other nations, commonly termed Capitulations" (p. 29). The fact is, however, that the two treaties standing out beyond all others in the matter of the Capitulations are the treaty of 1535 between Sultan Soliman and Francis I of France, and that of 1740 between Turkey and France; and just as the treaty of 1535 has inured to the benefit of the countries generally, so have the provisions of the treaty of 1740 likewise inured to the benefit of the countries with interests in Turkey. As Professor Brown expressly says, "it may be said that France first obtained for the rest the main immunities of jurisdiction claimed by all the Powers in subsequent treaties; and that all, through the most-favorednation clause, secured the mutual benefit of those special privileges obtained by any individual nation" (p. 41). The United States is one of the beneficiaries of the French treaties, and claims and exercises jurisdiction in the Ottoman Empire in accordance with the Treaty of 1830 between the two countries.
Chapters III and IV are an analysis of the juridical rights of foreigners under the express wording of the treaties and according to the customs which have grown up. It would be difficult to summarize this discussion, as the subject is wholly technical and would require much space. It is,
however, necessary to call attention to Professor Brown's views contained in Chapter V, and with which he concludes his monograph.
He believes, and rightly, that the system obtaining in Turkey, by which foreign governments exercise jurisdiction upon Turkey's soil, is humiliating, and that there should be reached with Turkey adjustments "in regard to the protection of foreigners, with due respect to the sovereign rights of Turkey as an independent, equal state in the family of nations" (p. 112). He thus regards, and it would appear rightly, the system of Capitulations as a stage of transition destined to disappear in the course of time, and that steps should be taken in order to reformulate the rights of foreigners in such a way as to be compatible with the dignity of Turkey. His recommendations are:
"I. According to the basic principles of international law, Turkey should have exclusive jurisdiction over foreigners, as well as natives, in all matters affecting public law and order in the Empire. This is essentially a fundamental right of independent sovereignty" (p. 112).
"II. Given the difference between Moslem jurisprudence and other systems of law, it is impossible for Turkey to enter into an international agreement 'defining the rights of foreigners in respect to personal status and civil capacity'" (p. 113).
"IV. The way out of the dilemma would seem clearly to lie in a frank recognition of the desirability of leaving to the exclusive jurisdiction of the consular courts all questions regarding foreigners which do not in any way affect the public law and order of the Empire" (p. 114). "It would mean," Professor Brown says, "simply the perpetuation of the existing consular courts with considerably restricted powers of jurisdiction; and a clear delimitation of the respective spheres of these tribunals and Ottoman courts. Turkey could then feel that the presence of these foreign tribunals was no longer in derogation of its sovereign rights" (p. 118). Professor Brown believes that such an agreement is possible and that it would be satisfactory to Turkey, and that, "recalling with pride that the privileges voluntarily and generously granted to foreigners and Christian subjects alike, were granted when the Turks were at the height of their military power, the descendants of the race of Osman might well claim with equal pride that the continuation of these greatly modified immunities of jurisdiction might properly be regarded, as suggested in the introduction, 'as evidence of a more enlightened and more liberal interpretation of the law of nations than has yet been granted in