« ПретходнаНастави »
dream of drawing up codes for the perpetration of murder or theft, and the so-called rights of neutrals will disappear.” He holds that the observance of order depends not upon enactments, or policemen, or even upon agreements, but upon a high standard of morality operating in the consciences of the people as a restraint upon evil-doing. He declares that the principles of ethics that apply to individuals must also apply to nations, and that above all else, if war is to be stopped, an unrepentant world must be convicted of a sense of sin.
The Right Hon. Syed Ameer Ali argues for a place in the League for Islam, especially for Turkey and Persia (which latter state was not then included), such as is accorded to two Buddhistic states and to Hedjaz, which, however, represents only a section of Arabia that has revolted against the leadership of Islam. Miss Sanger gives a hopeful account of the work to be undertaken by the international labor organization under the League of Nations.
The Grotius Society, however, keeping in view war as well as peace, in harmony with its name, still hears papers on rules for the conduct of war. Rear Admiral S. S. Hall writes on “Submarine Warfare," and Admiral Sir Reginald Custance on "The Freedom of the Seas''; George G. Phillimore and Dr. Hugh H. L. Bellot on the “Treatment of Prisoners of War." These are types of papers that have characterized the Grotius collection, which is the outgrowth of the World War, and differentiated it from the usual type of American discussions of international law, which have been more largely devoted to constructive schemes of world organization than to the reform of laws relating to hostilities. The laws of war and neutrality, however, still have a place in the writings of publicists, and may be of value for the future unless war is actually abandoned, which has been far from the case since the armistice was declared and the League projected.
It is impossible to summarize all these papers, but reference may be made to the views of Rear Admiral Hall on submarine warfare. He proposes to save enemy and neutral shipping from destruction by united international action against the use of the torpedo, which was the chief cause of the destruction of shipping during the World War. He would put an end to the sinking of merchant ships by submarine torpedo vessels firing without warning, and together with this practice, the use of false colors, disguises, decoys, depth bombs, and even the dropping of bombs from aeroplanes; but is in favor of allowing prizes which may be captured but never destroyed, to be taken into neutral ports if only to restore the balance to small Powers. He advocates cruiser warfare with submarine vessels armed with guns, giving due warning, like surface craft when using the torpedo at night, and the capture of prizes as in ordinary surface warfare. He believes cruiser submarine warfare to be entirely practical, and says that, had Germany followed it, as shown by some successful experiments with submarine cruisers, she could have complied with international law and would have won the war, probably without offending America. But the arming of merchantmen, which some writers discourage, should in his opinion not be forbidden unless convoy, which made the ordinary submarine legitimate by offering it resistance, is also forbidden. The proposed surrender of a merchant ship on summons by an enemy craft is objectionable, as it would tend to destroy the morale of the crews of merchantmen and strangle the sea-trade of Great Britain.
Pertinent to the name and purposes of the Grotius Society, as well as informing to students of international law, though outside the range of war problems, is a critical study by W. S. M. Knight of “Grotius in England." This should be read in connection with a discriminating address that Sir John Macdonnell delivered on “The Influence of Grotius," on taking the chair as the successor of Professor Goudy, who has retired from the presidency of the Grotius Society. It might well also be read in connection with Andrew D. White's laudatory essay on Grotius in his Seven Great Statesmen in the Warfare of Humanity with Unreason which is offset by the portrayal of the character of this great publicist by Mr. Grant. Mr. Grant tells us that Grotius flattered kings for the sake of getting into their society, that he wrote De Jure Belli ac Pacis in order to make his way into diplomatic service, and that while acting as an attorney for Holland he tried to persuade Great Britain to adopt views the opposite to those laid down by him in Mare Liberum. Future writers on Grotius should see this study before accepting conventional accounts of him and certain dates given for events in his life.
JAMES L. TRYON.
On Jurisprudence and the Conflict of Laws. By Frederic Harrison, with anno
tations by A. H. F. Lefroy. Oxford: Clarendon Press. 1919. pp. 179.
This volume should be welcomed by every law student and by all who seek a presentation in brief and lucid form of the fundamental conceptions of jurisprudence. While the distinguished author of the five lectures which make up the text is better known at the present day as a critic and historian (cf. his Early Victorian Literature, The Choice of Books, Byzantine History in the Early Middle Ages), he here appears as a jurist of high rank whose thought and style are both logical and clear.
Mr. Harrison was appointed in 1877 by the Council of Legal Education professor of jurisprudence, international law (public and private), and constitutional law, and lectured at the Inns of Court for twelve years, Mr. Bryce being his colleague with courses on the civil law of Rome. The lectures of Mr. Harrison appeared in the Fortnightly Review in 1878 and 1879, and are now printed as revised by the author and with annotations by Professor A. H. F. Lefroy of the University of Toronto. Despite the fact that in 1918 Mr. Harrison had reached his eighty-eighth year and had long ceased to labor in the field of jurisprudence, many friends were anxious to have these studies placed in an accessible form; and the result has assuredly justified their wishes.
Two of the five lectures are concerned with Austin's conception of sovereignty and his analysis of law; the third lecture discusses “The Historical Method," while the remaining two test with exactness and breadth of view the difficult “Conflict of Laws.” John Austin lectured at University College (now London University) from 1828 to 1832, when he resigned and published his Province of Jurisprudence Determined; he died in 1859.
Mr. Harrison thus sums up, at page 24, Austin's teaching on the analysis of sovereignty and law:
1. The source of all positive law is that definite sovereign authority which exists in every independent political community, and therein expresses de facto the supreme power, being itself unlimited, as a matter of fact, by any limits of positive law.
2. Law is a command relating to the general conduct of the subjects, to which command such sovereign authority has given legal obligation by annexing a sanction, or penalty, in case of neglect.
Further on at page 28 he adds:
Shortly stated, the theory of Austin as to sovereignty amounts to this: The force of all law is derived from that ultimate sovereign authority which in every independent political community actually exercises an unlimited power of command and is habitually obeyed by the bulk of the community. Now this proposition seems to me perfectly true, and in fact to be almost a truism, if we understand it in the sense in which it is said; i.e., as true for the lawyer from the point of view of formal and scientific law. And for that very reason, it is of such signal use in clearing the brain for the student who comes to law from the study of morals or other branches of social science. But from the point of view of a complete social philosophy, from the point of view of scientific history and scientific politics, the proposition requires so much qualification and correction, that it ceases to be a complete account of the matter at all.
Touching Austin's analysis of law, Mr. Harrison tells us (page 37) :
We have spoken of Austin's definition of sovereignty. We will pass to the second of his leading propositions, the definition and analysis of law. In this he is the editor and expositor of Bentham, who himself follows Hobbes. Gathering up their statements, the combined results amount to this: Law is a general command, which the determinate Sovereign, or supreme political authority of a State, has imposed as an obligation on all, or a part of its subjects, and which command it enforces by a sanction. Austin insists that law involves always these three elements, which in law are correlative and mutually imply each other: (1) command, (2) obligation, (3) sanction; and the whole depends on the sovereign authority of an independent political community, such sovereign being possessed of unlimited power.
This analysis of law is open to observations similar to those already made as to the proposition about sovereignty. That is to say, it must be understood from the point of view of the lawyer, and as being only one of the aspects of the question.
These conceptions, it appears, are essentially those of Bodin (1581). To Mr. Harrison's comprehensive criticism of Austin's work, Professor Lefroy has added (pages 149-173) a series of illuminative notes, together with well chosen extracts from Holland, Bluntschli, Pollock, Bryce, Prof. W. Jethro Brown, Mr. Holdsworth (History of English Law), Mr. Justice Markby, Mr. J. Neville Figgis, Prof. Salmond, and others.
To the reviewer it is a pleasure to note Mr. Harrison's appreciative paragraph (at page 21) touching Blackstone:
it being conceded that Blackstone wrote and thought in the age of vague commonplace about the ultimate sanction of law and of mysterious veneration of the British constitution, it is to be regretted that Austin should fill the mind of the beginner with contempt for a work like the Commentaries on the Laws of England, which is not only in itself a masterly work of art, but is still the only available attempt to cast into a literary form a comprehensive panorama of English law as a whole. Austin was absorbed in keeping his grasp with rigid tenacity on certain coherent conceptions. Blackstone was occupied in arranging the complex labyrinth of English law into such an artistic composition as should at once impress the imagination of his lay readers. And this he has undoubtedly succeeded in accomplishingand he alone has succeeded.
Lecture III, “The Historical Method," seems to the reviewer in all respects admirable. It was written in 1879, or ten years after the appearance of Dr. Stubbs' Constitutional History and precisely when Freeman's historical labors were producing their notable harvest. “The historical method in law,” says Mr. Harrison (pp. 71, 80, 86),
is the special resource and almost the discovery of our immediate time, and it is important for the lawyer to recognize its proper use and its available limits. The historical method, it is true, can give us nothing of the existing state of the law as we want it for daily practice. ... What is the practical conclusion to which I would point? It is that the historical method is one of the resources of jurisprudence, not the substantive part of it, and in no sense an independent part of it. It would be possible to have a very great and varied knowledge of the history of any legal system, and yet never to grasp it at all as a coherent and symmetrical scheme. For the lawyer the great interest always must be what is the law as it is. How it has become what it is, is a very useful inquiry. But this will become positively confusing if the subordinate inquiry is ever allowed to stand on equal terms with the main inquiry—the law as it is, as it is at any given time.
And he well continues (page 87): all this points to making the historical inquiry merely an instrument of jurisprudence, and never to take it for jurisprudence itself. Scientific jurisprudence should tend always to look at a system of law complete as a working whole at any given time. The sympathies will be always toward the rational and scientific modes of classification; to the final type of any system, not to its rudimentary forms. The historical inquiry unrestrained constantly tends on the other hand toward the anomalous, the accidental, the initial type of the institution. The only way to guard against this is to use the historical method in jurisprudence strictly and simply as an instrument, ... [p. 89] The historical method is thus a potent and fruitful instrument of jurisprudence, but it is very far from being the last word of jurisprudence. That must always be looked for in the analysis and consolidation of the actual doctrines of law under systematic titles. . . . [p. 90). The root of the matter, I suppose, is the scientific analysis and distribution of legal doctrines and statutes, and their consolidation into a symmetrical and practical whole. This is doubtless a great, and possibly a far distant work; but it is one that is impossible without a real and sound jurisprudence. And the methods of such a jurisprudence will probably be found to be three, of which no one should exclude or can supersede the others—the analytic, the historical and the comparative.
Lectures IV and V contain a careful examination of the development of the science which we term the “Conflict of Laws” or “Private International Law.” At the outset of any study of this highly complex and important system, it is necessary clearly to differentiate it from international law or the law of nations. In the celebrated case of Hilton v. Guyot, decided by the Supreme Court of the United States at October term, 1894 (159 U. S. 113, 163), Mr. Justice Gray said:
international law, in its widest and most comprehensive sense-including not only questions of right between nations, governed by what has been appropriately called the law of nations, but also questions arising under what is usually called private international law, or the conflict of laws, and concerning the rights of persons within the territory and dominion of one nation by reason of acts, private or public, done within the dominions of another nationis part of our law, and must be ascertained and administered by the courts of justice, as often as such questions are presented in litigation between man and man, duly submitted to their determination.
The most certain guide, no doubt, for the decision of such questions is a treaty or a statute of this country. But when, as is the case here, there is no written law upon the subject, the duty still rests upon the judicial tribunals of ascertaining and declaring what the law is, whenever it becomes necessary to do so in order to determine the rights of parties to suits regularly brought before them. In doing this, the courts must obtain such aid as they can from judicial decisions, from the works of jurists and commentators, and from the acts and usages of civilized nations. (Fremont v. United States, 17 How. 542, 557; The Scotia, 14 Wall. 170, 188; Respublica v. De Longchamps, 2 Dall. 111, 116. Moultrie v. Hunt, 23 N. Y. 394, 396.)
No law has any effect, of its own force, beyond the limits of the sovereignty from which its authority is derived. The extent to which the law of one nation, as put in force within its territory, whether by executive order, by legislative act, or by practical decree, shall be allowed to operate within the dominion of another nation, depends upon what our greatest jurists have been content to call “The Comity of Nations." Although the phrase has been often criticized, no satisfactory substitute has been suggested.
In a subsequent paragraph of the opinion, Mr. Justice Gray took occasion to refer (p. 215) to the question of remittance or renvoi of a cause from the courts of a country to which it had been thought proper to send it to the forum where it originated, citing a case determined at Paris by the Cour de Cassation in 1819, where the expression is used “obtint son renvoi devant les tribunaux Américains.” Renvoi was discussed at length a few years later (1904) by Mr. J. P. Bate in his Notes on the Doctrine of Renvoi.
Not merely, however, must we mark well the fundamental distinctions between the law of nations and the conflict of laws, but we must find an appropriate designation for our science. This has scarcely as yet been done. Yet the necessity for such a science becomes obvious if we consider that transactions are continually being brought for decision before all courts of justice, which in whole or in part depend for their legal quality on the laws of a state different from that which has to try them. There is here no essential conflict but merely ambiguity, arising from the fact that more than one set of coördinate laws apparently apply to the case. The phrase of Savigny is strictly exact: Private international law marks the limitation of legal rules in respect to place. Our author proposes the term Intermunicipal Law, and would describe this science as “The law of compound jurisdiction” (p. 131). It does not seem, however, that “Intermunicipal” is likely to prove satisfying. Again we may employ the term “Private International Law” because our science rests upon “the doctrine of the equal sovereignty of friendly nations and the desire of civilized states to treat their neighbors civilly as well as politically, with equal justice." The applicable law, nevertheless, is municipal, since it springs from judicial determination and has no concern with diplomatic relations or with the intercourse of governments or states. It is not international. It is, as Mr. Harrison shows, indeed, somewhat older than modern international law, since we can trace its principles to the famous Legist Bartolus of Sasso Ferrato in the March of Ancona.
Mr. Harrison follows the development of our science through the writings of Argentræus (D’Argentré) of Brittany (1608), Rodenburg of Utrecht (1653),