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out the agency does not require further intercourse between the agent and his principal across the line of war. The author also takes up the definition of a “Branch” of an enemy business.
Under “Companies” the author discusses the enemy character of companies and the shareholders' contract of membership. The author points out that the old view in England was that a corporation takes its character from the country in which and under whose laws it is incorporated without regard to the status of its individual members, and refers to the effort of the courts during the recent war to look back of the corporate entity and to ascertain the enemy character of the persons controlling its affairs. The case of Daimler Company v. Continental Tyre and Rubber Company is the case in which this turning-point in the law is made. The author touches upon the reverse situation, namely, what circumstances will be regarded by the English courts as freeing a company incorporated in enemy territory from enemy character.
Under “Partnership” the author points out that this contract is a typical case of dissolution although the property rights of the partner are preserved. A practical remedy for most of the difficulties was provided in the enemy legislation for state supervision and control of partnerships containing enemy elements.
Finally, the author takes up the effect on contracts of action by the Executive, such as prohibitions of export or import or other official action of an emergency nature. The lawful requisition by the Government of goods will excuse the seller from further performance of his contract. Where, however, the goods are not specific under the contract or the prohibition is only partial, more difficult questions arise. Many of the cases turn upon the construction of particular clauses and it is not easy to extract any general principles.
This book is an able comparison of recent decisions with pre-war opinions of the courts and shows clearly and interestingly the departures from the old rules or principles governing commercial transactions during war. It is a contribution to the legal history of the Great War.
LESTER H. WOOLSEY.
De la Guerre au Droit. By Th. Ruyssen. Paris : Librairie Felix Alcan.
1920. pp. xii, 304.
This book is an unpretentious short study of a great subject. Its author is a well-known professor in the University of Bordeaux and editor of La Paix par le Droit. He has dedicated his “book of peace" to the memory of his “students of philosophy, who died for their country, for the right, and for the liberty of the world.” Its readers will find no novel facts or conclusion within its pages. They will find simply a reënforcement of the all-too-familiar facts that past wars were hideous, that the recent war was more hideous, and that future wars would be most hideous. Upon this fact is based the conclusion that unless the world turns from war to law, its civilization will be submerged by barbarism.
But let it not be hastily assumed that such a book serves but to carry coals to Newcastle. In our time Newcastle has far too little coal. The fact which it illustrates and reënforces is perceived, but not apperceived, by the men of our time; and the conclusion which it iterates and reiterates is accepted by our contemporaries in a half-hearted manner. Seeing, they see not; and professing, they do not really believe. To persuade a warweary world to adopt the pacifism it professes is of like importance to inducing a sin-weary world, “converted” to Christianity, to put its Christian professions into practice.
It cannot be claimed that the author, in the pursuance of this task, is wholly consistent or entirely convincing. The author's arraignment of the World War is a severe one, although, of course, entirely inadequate; and the same may be said of his arraignment of the European diplomacy which caused the war. This diplomacy he shows to have been on all sides monarchical and not democratic, to have suppressed international aspirations for autonomy in the interests of the centralizing and absolutist pretentions of the modern state, to have been so shot through with imperialism that the World War would have come even though German imperialism had not forged to the front, and that another World War will come unless imperialistic rivalries are curbed.
His next thesis is the inadequacy of most of the attempted bases of peace, namely, religion, labor, science and peace societies; but law, international law, remains, and upon this he pins all his hope of future peace. This leads him to discuss the relation of war to law, and the sources of law in social contract and the social conscience. He shows that in primi. tive societies war is not only the suspension and the negation of law, but that through a long course of development due to economic, psychological, religious and philanthropic factors war has become more and more repressive or punitive of crime. With due credit to Grotius and his followers, our author regards Kant as the real founder of the philosophy of peace, which he based upon the essential conditions of municipal liberty and international arbitration. Modern pacifism, including that of President Wilson, he thinks, has not added a single vital conception to the philosophy of Kant. He admits that the Papacy was of much influence in this development, in promoting the formation of a society of nations subject to a single law; and regards it as fortunate that the decline and fall of the Papacy in international affairs was contemporaneous with the rise in 1815 of an international public law. He admits also that the diplomacy of peace in the intervals of war has played a great rôle. By this development he believes that there has been logically prepared the absorption of war in law.
This brings him on page 202 to the main thesis of his book, namely, that “modern war is, if not a judicial procedure, at least a quasi-procedure." He labors to prove this thesis by reference to the objects of recent wars, the procedure of ultimatums, etc., which accompany their commencement, the appeal to public opinion (as to seconds in a duel), the emergence of neutral rights and duties, the laws of warfare, and the ending of war by negotiations (to which neutrals are admitted, and the original question is returned to the diplomats at the point where they lost control of it). Our author in supporting this thesis admits that the laws of warfare were violated during the recent war, but claims that this was due to lack of sanction and not to the defects of the laws themselves. He also admits that at peace negotiations two equal sovereign Powers do not meet each other, but that victor and vanquished face each other; hence he uses the attenuated term “quasi procedure” as an alternative to judicial procedure. There is evidently great value in this word “quasi”; it is evidently his equivalent for the familiar “more or less.” And in his eagerness to prove his thesis our author gives the impression of standing by his theory and disregarding the facts which contradict it. Even the atrocities committed in Belgium (most of which he regards as punitive, that is, judicial), he argues are themselves an evidence of law, namely, the law of a speedy and complete victory, and one of which the Germans in their Kriegsbrauch im Landkriege, 1902, had even given fair warning in advance as to what their enemy should expect. Upon this basis he states his conclusion: Let us develop this law of war, and supply it with sanctions until it has diminished war, just as municipal law has reduced crime.
Looking toward the future, he believes that all peace efforts henceforth should be directed toward this conversion of war into law and should follow the lines laid down by the peace congresses of Rome and Budapest in 1891 and 1896, and the principles stated by such men as Asquith, Balfour and Wilson during the World War. As for the pacifists, he believes that they will be tomorrow what they were yesterday, that is, unanimous on the great principles, but divided into irreconcilable factions on the application of these principles. Especially he believes that there will be among the pacifists the two camps of non-resistants, the opponents of all war, and the “legitimate defenders," the apologists for wars of defense. In his effort to distinguish more clearly between these two groups, he rings the changes upon such terms as “pacifistes," "jurispacistes," "l'Internationale du Droit,” etc.
To the reviewer of this book, its author appears to have erred in two respects: first, in regarding war, not as the suspension or the denial of law, but as itself a law; and, second, in regarding the vital question of pacifism in the future as between non-resistants and a police force: whereas the vital question appears to be, whether the society of nations will attempt to base a durable peace upon the coercion of communities by military and economic force, or upon the organization and exclusive application of the forces other than military and economic which are already within its grasp.
WM. I. HULL.
The United States of America: A Study in International Organization.
By James Brown Scott. New York: Oxford University Press, American Branch. 1920. pp. xx, 605.
No person has been more indefatigable than has Dr. Scott in urging forward the project of a permanent court of international justice, nor more controlled by the conviction that the constitutional system of the United States furnishes a prototype of a feasible form of union between the independent States of the world, and that the decisions of the American judiciary provide at once a basis for the jurisprudence of an international court, if and when established, and a demonstration that such a tribunal may with safety and profit be established by the nations of the world. In a recent issue of this JOURNAL (October, 1920), the reviewer published a notice of the two volumes, edited by Dr. Scott, giving the texts of opinions rendered by the Supreme Court of the United States in cases in which controversies between the States of the American Union have been adjusted, and of a third volume in which Dr. Scott analyzed these cases and opinions. In addition, in collaboration with Mr. Gaillard Hunt, Dr. Scott has issued, through the Carnegie Endowment, an edition of James Madison's Notes of Debates in the Federal Convention of 1787, and, in a separate volume, an analysis, by himself, of these Notes. We now have another treatise, issued in the same sumptuous form by the Carnegie Endowment for International Peace, in which Dr. Scott has surveyed the steps leading up to the establishment in 1789 of “a more perfect Union” than that provided by the Articles of Confederation, and has considered with especial care the jurisdiction vested in the judicial department of this more perfect Union.
Preliminary chapters deal with the idea of union of the colonies as it found expression, prior to the Revolutionary War, in the plans of Penn and Franklin; with the movement for independence from Great Britain; with the confederation of the sovereign States, as they had become after their several ties to the mother country had been broken; with the historical precedents—the colonial charters, the rise of representative institutions, the settlement of boundary disputes between the colonies, the character of the constitutions which the thirteen States had adopted for themselves—which, in 1787, furnished pragmatic material for the guidance of the framers of the new federal Constitution. The work of the Federal Convention is then carefully analyzed in order to show the nature of the problem that had to be met, the various alternatives that were offered, and the results finally reached. At every point, the feature that is emphasized is the working out of the problem of obtaining the harmonious coöperation, through law, of independent or quasi-independent States. The Federal Convention is designated as “An International Conference," and the American constitutional system as a “federal” rather than as a “national” union.
Dr. Scott does not slight the functions of the federal executive and the Congress, but his chief concern is evidently with the judiciary, and, of course, particularly with the Supreme Court. The historical origins of this tribunal and of its jurisdiction are carefully traced, the article by J. C. Bancroft Davis on “Federal Courts Prior to the Constitution" and Professor J. F. Jameson's study, “The Precedents of the Supreme Court,” being paraphrased for this purpose. The chapter dealing with the establishment of the Supreme Court is entitled “Prototype of a Court of International Justice.” After quoting Madison's Notes of the debate in which it was decided by the convention that the Supreme Court should have jurisdiction of controversies between the States, Dr. Scott says:
"We are indeed fortunate to have even this brief account of one of the silent revolutions in the thought and therefore in the practice of mankind, for, with the lessons of history before them and with no exact precedent for their action, the members of the convention recognized that the submission of a dispute between nations to a judicial tribunal makes of it a judicial question, and therefore a proper subject of judicial power, as pointed out by the agent of their creation in the controversy between Rhode Island and Massachusetts decided in 1838."
The chapter closes with the following statement, which deserves quotation in full:
It is obvious that the Society of Nations will be confronted with problems similar to if not identical with the problems which faced the framers of the American Consti. tution when they set about to create a Supreme Court of the Union which they were rendering more perfect. The Convention creating the closer union of the Society, like the Constitution creating the more perfect union of American States, will need to be interpreted, and the experience of the United States shows that this can best be done by a permanent court of the union.
General conventions or special treaties to which States of the Society of Nations are parties, will need to be interpreted; but, here again, the experience of the American Union, with its tribunal, should be enlightening.
A court of the Society will necessarily be a court of limited jurisdiction; but, with the growth of confidence in that tribunal, its jurisdiction will be enlarged in the way pointed out by the Supreme Court itself; that is to say, by an agreement to submit to the tribunal questions hitherto considered political, questions which, by the very act of submission, become judicial.
Gradually, as the result of experience, the usefulness of the court will be thus enhanced. The possibility of the substitution of law for physical force may dawn upon the statesmen of the modern world just as it dawned upon the framers of the American Union, and the conduct of nations, like the conduct of States of the American Union, be guided and eventually controlled by the principles of justice.