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La Intervención de España en la Independencia de los Estados Unidos.
By Manuel Conrotte. Madrid: Libreria general de Victoriano Suarez. 1920. pp. 298, 6 pesetas.
The growing interest recently shown by historical schools of the United States in the relation of Spain to the Revolutionary War in this country has its counterpart in this book from the pen of a Spanish historian. That the influence of Spain on the struggle was less than that of many other countries is admitted by the author. While in cities of the United States many monuments are found erected to the honor of foreigners who participated in that struggle, he points to the fact that there are none to Spaniards and implies that perhaps none are deserved. The influence which Spain's participation exerted on the war for the independence of the United States is of less interest than the influence which Spanish participation in that struggle had on Spanish sovereignty over her own American dominions. The author's introduction speaks of the pernicious example placed before the Spanish colonies by the assistance which Charles III gave to the rebellious English colonies, a matter usually emphasized by writers in this field.
The author's chief source of information, he says, was the diplomatic correspondence contained in the National Historical Archives at Madrid. Although his footnotes and citations are not especially numerous, they are sufficient to support the claim that the material is drawn chiefly from valuable primary sources. There are some, though few, citations of secondary sources. The book is not merely a worthy contribution to the history of the Revolutionary War, but it also contributes useful material for a history of that conflict and at the same time constitutes a suggestive guide or index to the rich repository of material for the history of the United States contained in the archives of Spain.
The most frequent references are to the correspondence of Floridablanca, the Spanish Foreign Minister; Aranda, Spanish representative at Paris; Vergennes, French Foreign Minister; Montmorin, French representative at Madrid; Masserano, Escarano, Almodovar and Campo, successive Spanish representatives at London ; Franklin and Lee, representatives of the revolted English colonies; Bernado Galvez, Spanish Governor of Louisiana, and José de Galvez, Spanish Colonial Minister.
An appendix of seventy-five pages contains the complete text of many documents, among them the full power of Franklin to negotiate a treaty with Spain, the treaty between France and Spain of April 12, 1779, by virtue of which the latter entered the war against England; articles of capitulation presented by Galvez, Spanish Governor of Louisiana, to Durnford, English Governor of West Florida and commander of British troops, and articles of capitulation presented by the same Spanish Governor to the British commander at Pensacola.
The writer in his first chapter draws an interesting contrast between the impression which the insurrection in America produced on the public opinion of France and Spain, respectively. The influence of the Encyclo pedists and the doctrines of Rousseau caused the French to applaud the colonists who had rebelled against tyranny, to compare them with the heroes of classical antiquity, and to celebrate their exploits in poetry, theatricals, and novels. In Spain, on the contrary, the conclusions of theology and philosophy were such that the crime of disobedience on the part of a subject toward his sovereign could not be tolerated.
Speaking of the defective linguistic equipment of the Colonial Commissioners, the writer says that Franklin spoke very bad French, Deane worse, and Lee was absolutely ignorant of the language, characteristic faults which their diplomatic successors have not yet entirely overcome.
Spain's position in international affairs after 1763; her attempt to preserve a conditional neutrality and intervene to restore peace between England and the colonies; her military objectives; her negotiations with the colonies; her share in the peace negotiations, and the outstanding difficulties in her relations with the new nation over the questions of boundaries and navigation of the Mississippi River, constitute the chief topics of the successive chapters.
As is usual, though regrettable, in Spanish books of this character, there is no alphabetical index, but merely a topical list of contents. In this there are not even page citations, except at the beginning of chapters.
WM. R. MANNING.
The Equality of States in International Law. Harvard Studies in Juris
prudence, Volume III. By Edwin De Witt Dickinson, Ph.D., J.D. Cambridge: Harvard University Press. 1920. pp. xiii, 424.
The idea of equality is instinctive. Its vehement assertion is an imperious necessity. One could never assert the right of inequality except in defense of slavery.
The principal of equality among nations has been vigorously reaffirmed in recent years.
The American Institute of International Law on January 6, 1916, declared:
Every nation is in law and before law the equal of every other nation belonging to the society of nations, and all nations have the right to claim and, according to the Declaration of Independence of the United States, “to assume, among the powers of the earth, the separate and equal station to which the laws of nature and of nature's God entitle them."
The Union Juridique Internationale, in its session of November 11, 1919, in Paris, also declared in more guarded terms that:
Les États sont égaux devant le Droit.
de la communauté internationale, sans conférer nécessairement une égale participation à la constitution et au fonctionnement des organes préposés à la gestion de ces intérêts.
Ils sont limités dans leur droit par leur obligation de respecter le droit des autres Etats.
This qualified interpretation of the principle of equality is characteristic of the attitude of the publicists of repute on international law. Few venture to assert as an inherent, inalienable, absolute right, without qualification, the claim to equality among nations. Nearly all recognize their glaring political inequalities. To some publicists equality is a logical corollary to the right of existence as a separate, independent, sovereign state. To many it signifies equality in and before the law"-whatever that may mean. To others it is the assertion of a mere rule of international courtesy-the outward respect due to an international personality. To most of the publicists the principle of equality, in final analysis, would seem to signify a platonic ideal—a distant goal of perfection toward which nations are laboriously moving.
The confusion of thought on this subject is painfully apparent, as is also the frank denial of equality in the actual intercourse of nations. Witness the proceedings of the recent Peace Conference in Paris and the Covenant of the League of Nations !
Dr. Dickinson has undertaken in a most judicial and scholarly manner to dissipate this confusion of thought concerning a fundamental problem, not merely of the law of nations, but of the very nature of international society and of international organization. His main conclusions are as follows (p. 334):
1. “The principle of state equality in international law was a creation of the publicists."
2. “It was derived from the application to nations of the theories of natural law, the state of nature, and natural equality."
3. “The conception of state equality was first developed as part of a coherent theory by the naturalists of the seventeenth and eighteenth centuries. Grotius neither discussed the conception nor based his system upon it.” Pufendorf, under the inspiration of Hobbes, was largely responsible. The later publicists rather blindly followed in his lead, though reënforcing the argument for equality by arguments based on the rights of existence, independence and sovereignty.
4. “The principle of equality ... in the modern law of nations is the expression of two important legal principles. The first of these may be called the equal protection of the law or equality before the law. States are equal before the law when they are equally protected in the enjoyment of their rights and equally compelled to fulfil their obligations. . . . The second principle is usually described as equality of rights and obligations or more often as equality of rights. What is really meant is an equality of capacity for rights. Equality in this sense is the negation of
status. . . . .
Equality of capacity for rights... is not essential to the reign of law. Strictly speaking, it has never been anything more than an ideal in any system of law.”
5. “Conceding that equality of capacity for rights is sound as a legal principle, its proper application is limited to rules of conduct and to the acquiring of rights and the assuming of obligations under those rules. It is inapplicable from its very nature to rules of organization. Insistence upon complete political equality in the constitution and functioning of an international union, tribunal, or concert is simply another way of denying the possibility of effective international organization."
These conclusions, it will be observed, definitely accept inequality of status among nations, though affirming their potentially equal capacity for rights. Dr. Dickinson holds (p. 335) that: “Equality before the law is not inconsistent with the grouping of states into classes and the attributing to the members of each class of a status which is the measure of a capacity for rights. Neither is it inconsistent with inequalities of representation, voting power, and contribution in international organizations. In other words, though all nations have an equal capacity for rights, it is the privilege of certain superior nations to determine for the rest their exact status "which is the measure of capacity for rights!” The question would seem highly debatable, and Dr. Dickinson himself says that in the discussion of the status of small nations in the constitution of an international court of justice: “This distinction between having a political right and being able to use it was effectively refuted by Barbosa. The Brazilian delegate denounced the distinction as manifestement sophistique." It would appear logical that if equal capacity for rights does not include the right to participate equally both in the organization of an international court of justice and in the formulation of the law to be applied by this court, such nation cannot be said to possess real "equality before the law." An inferior status determined by other nations renders justice arbitrary when accorded by these same nations. Such a conception of equality would appear manifestement sophistique.
Nothing can be said in criticism of Dr. Dickinson's method of analysis. His exposition of the relation of the law of nature to the law of nations is unexcelled in thoroughness, precision, and penetration. His chapters on "Internal and External Limitations upon the Equality of States” are most original and illuminating in setting forth the exact nature of international society as well as showing the various ways in which a nation may acquire an unequal status. His chapter on “The Equality of States in the Peace of Paris" is a most acute analysis of the work of the Conference and furnishes striking though melancholy confirmation of his own evaluation of the working significance of the principle of equality.
Dr. Dickinson has succeeded most admirably by the use of what he terms in the preface (p. viii) "a realistic outlook and the application to
the subject matter of established principles of legal analysis” in avoiding “the pitfalls of 'loose writing and nebulous speculation.'” His book is a splendid contribution to the constructive thinking required to regenerate the law of nations and to establish it as a sound system on the basis of realities.
This book should be in the hands of all students of the science. It should be read with particuar care and interest by all advocates of international organization who desire first of all to understand the exact nature of international society before undertaking the difficult task of its higher organization.
PHILIP MARSHALL BROWN.
The Senate and Treaties, 1789-1817. By Ralston Hayden. New York:
The Macmillan Co. 1920. pp. xvi, 237.
This monograph, published by authority of the Executive Board of the Graduate School of the University of Michigan, is designed to cover the period from 1789 to 1817, as regards the development of the treaty-making powers of the Senate. The author has confined himself strictly to this period, and is to be commended for his diligence. The work is primarily a study in history and politics. The treatment is in chronological order, rather than by topics. Any objection to this arrangement, for purpose of reference, is overcome by a carefully prepared index. The nine chapter headings are as follows: "The First Exercise of the Treaty-Making Power"'; “Development of Treaty-Making Power through Action on Treaties with Indian Tribes, 1789–1795”; “The Treaties with Algiers and Spain, 1790–1796”; “The Jay Treaty”; “The Creek Treaty of 1796”; “Treaties of the Administration of John Adams"; "The Senate and the Treaties of Thomas Jefferson"; "The Genesis of the Senate Committee on Foreign Relations,” and “The Treaty-Making Powers of the Senate at the End of the Formative Period, 1815-1817." The citations show that the author has examined fully the published writings of the leaders of the period to discover the motive for official action. Withal, it is a very valuable and interesting study.
S. B. C.
The New World Order: International Organization, International Law,
International Coöperation. By Frederick Charles Hicks. New York:
Here we have a book packed with facts and written by one versed as a briefer. The author is the law librarian of Columbia University, but he has done more than to “turn over half a library to make one book”; he