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number of juridical relations is recognized by all positive legislations and no one censures such precepts, but it is recognized that the legislator cannot foresee all the possibilities nor satisfy all the necessities and, leaving to the parties a sphere of action by which they may formulate by themselves their law, the interest of the state does not suffer, neither does the power and authority of the codes.
This faculty is not lost when a person goes abroad, nor can it be denied to the foreigner who resides in our country. It results independently of the nationality and of the residence, because its foundation is not found in the residence or in the nationality or in the causes determining its existence.
Chapter seven deals with the effects of the law of private order. The Autarquia Personal is the fountain of great juridical progresses, because it permits the will to continue creating new institutions and customs without molds or codes, according to social necessities. Text writers, legal congresses and codes in force have repeated this necessity and are accustomed to seeing that the effects of these laws cannot be admitted when they may be contrary to public law or good customs.
In resumé, the effects of the laws of private order are double so far as territorial extension is concerned, because these laws regulate, are accepted and are applied within and without the nation which promulgates them; uniform in regard to their personal efficacy, because they are found in all territory, at the disposition of nationals and foreigners without difference; absolute in every case for the country from which they proceed and for the nation in which they are invoked, as a substantial part of its system over the limits in the space of legislative competency; extraterritorial, in regard to the sphere of action of the express or tacit will and in regard to the recognition of the presumed will, and originate, as legitimately as any other from acquired rights, whose force and international recognition cannot find other obstacles than those derived from the public order in the nation where they may be invoked.
The next six chapters discuss the tenor of private order with reference to the civil law of persons, property, contracts, mercantile law and procedure. The author illustrates how in some cases Autarquia Personal is permitted while in others it is not possible, and he shows that it is impossible in criminal procedure, but is permitted under certain circumstances in civil procedure.
Chapter fourteen contains the conclusion of the author. He says, “The summary exposition of the fundamental principles of private
international law lead us to the conclusion that there exist three groups of laws from the point of view of the limits in space of legislative competency; those of private order, those of public internal order and those of public international order."
The whole object of this book seems to be to demonstrate the great amount of personal liberty which exists without restraint of law and to prove that positive law often results from the Autarquia Personal which has been exercised for considerable time by individuals. The book is written in a clear, forceful and attractive style. It shows the profound grasp which the author has of private international law. It is interesting and instructive and well worth reading.
WALTER S. PENFIELD.
The Rules of Land Warfare. Prepared, with the approval of the Sec
retary of War, by the Army War College, Washington, D. C.
1914. The appearance of an authoritative handbook of the laws governing the operations of war on land coming, as it does, during the pendency of a great European war, is most opportune. The strategic and tactical principles governing military operations have undergone important modifications in recent years, and these changes have had a decided influence upon the laws of civilized warfare; for, like other bodies of controlling principles, the laws of war are undergoing steady but constant changes; the extent and character of these changes, together with their effects upon the accepted rules of war, can only be discovered by a comparison of works upon the subject which have appeared at considerable intervals of time.
Colonel Edwin F. Glenn has wisely decided to base his work upon the succession of international agreements which have been entered into in recent years with a view to define the rights and duties of belligerents in land and naval warfare. These are so numerous and cover the field so fully as to enable a treatise like that under examination to be prepared, composed for the most part of treaty stipulations to which the principal states of the world are signatory parties. These undertakings, taken separately, are somewhat lacking in the order and logical sequence of their several parts, and one who desires to know all that has been said upon a particular subject must consult a number of treaties entered into, in some cases, at considerable intervals of time.
Colonel Glenn, who was charged with the preparation of the volume
by the Army War College, has done his work exceedingly well. He has approached the subject from the proper point of view by making a logical arrangement of the several subdivisions of the subject; under each of these heads he has arranged the appropriate conventional requirements, connecting them, when necessary, by a few words of comment or critical illustration; these are numerous and though briefly presented, are sufficient to make clear the text of the conventional undertakings which constitute the substance of the work. At the conclusion of the text the several agreements are given in full, and these include all the instruments from the Declaration of Paris in 1856 to the most recent deliberations of the several conferences at The Hague. The work is well printed, is easy of reference and has an excellent index. It cannot fail to be of the greatest assistance in following the course of the great war now in progress in continental Europe.
GEO. B. Davis.
Consular Treaty Rights and Comments on the Most Favored Nation' Clause.
By Ernest Ludwig. Akron, Ohio: The New Werner Company.
1913. pp. 239. This work, despite its general title, is confined almost exclusively to a consideration of the treaty rights of foreign consuls in the United States with respect to the administration of estates of their nationals decedent in this country. The writer, who is Consul of Austria-Hungary at Cleveland, Ohio, states in his preface that the volume contains a brief primarily addressed to the probate judges of that part of the United States included within his consular district, as well as to other judges who may have to pass judgment in matters involving consular treaty rights. The work deals with its subject from the Austro-Hungarian standpoint and does not investigate the powers of consuls of other foreign countries, except as incidental to the discussion of the legal force of the 'most favored nation' clause. The first chapter contains excerpts from the existing consular convention between the United States and Austria-Hungary, followed by excerpts from several other consular conventions of this country wherein other or greater powers may appear to be granted to consuls. These are followed by epitomes of some forty cases decided in the State courts, and the case of Rocca v. Thompson, decided by the United States Supreme Court. The treatment of these cases is not entirely satisfactory, as, for instance, that of the case of In re Lis' Estate, Austro-Hungarian Consul v. Westphal, et
al. (December 27, 1912), 139 N. W. 300, wherein the court held that while the Swedish treaty gave in terms the right to be appointed as administrator this right was qualified by the language "so far as the laws of each country will permit.” This, the real point of the case, is not adverted to by the author.
The volume concludes with a discussion of the legal effect of the 'most favored nation' clause in commercial and consular treaties, and an appendix consisting of an opinion of Attorney General Caleb Cushing of October 14, 1853, regarding the surrender of deserting seamen. The lack of a table of contents and an alphabetical list of cases is felt, especially as an identical running page head is preserved throughout the volume. Nevertheless, the work will doubtless prove a convenient and suggestive aid to persons interested in this special branch of probate litigation, as it brings within a small compass much information that can be otherwise found only by access to numerous bulky volumes.
HENRY G. CROCKER.
Des Droits sur les Lettres Missives. By François Geny. 2 vols. pp. xlü,
400, 452. Paris: Larose & Tenin. 1911. 20 fr. net. Any book of Geny's will be approached with a natural prejudice in its favor. The learned professor of law at Nancy has already given hostages on the field of jurisprudence which no one would wish to have restored. He is one of the few living French authorities in legal science whose fame extends as far away as Berlin. The present work is an application of the critical principles of interpretation advanced by the author in a remarkable work, now out of print and greatly in demand, published under the title, Méthode d'interpretation et sources en droit privé positif (Paris, 1899).
Every developed system of law has had its liberals and its reactionaries, its Hanafites and Malekites, its Proculians and Sabinians, its Mansfields and Kenyons. The fact itself of legal development inspires these oppositions. The law in the process of becoming a science tends progressively to overshadow the utilities of life in favor of an unyielding conceptual technic. To change the figure, it swallows up each new situation, assimilates it, and makes it a part of tissues already created. A man is as old as his arteries, and a legal system is as old as its technic. No method in practice has yet been discovered which will prevent the deposit of technical lime salts in the arteries of the legal structure, and render it immune from the hardening inflexibilities of age. Literally,
legal systems must be born again and again to accord with the perpetual youth of life. Geny would resist this imminent law of evolution with the magical solent of “libre recherche.” He protests against the ancient method of putting new wine into old bottles. He combats the omnivorous appetite of the law which ingests everything old and new without discrimination, and which classifies whatever comes to its capacious maw under the rude classification of flesh or grass. In a word, Geny would substitute for a system which operates with logical rules, a method of legal application constantly responsive to an ideal of justice suggested by conscience and defined by social conditions. He is not the first one in jurisprudence who has thus resisted, and objected. Many years ago Jhering saw clearly what Geny now sees, and fought the conceptual categories with the weapons of a brilliant irony; but it is to Geny's credit that he was the first to investigate the foundations of the whole problem in a thoroughgoing and scientific spirit.
Today, legal method is the leading problem of legal science, and our author has again contributed recently a richly documented work which probably will long be taken into account in the world-wide effort to provide a solution. The problem itself has been primarily evoked by the existence of codes which were constructed either in a period of agricultural economy or upon a basis of an individualist polity, and which have survived without substantial alteration, long enough to be overtaken by an intense industrial era. The social point of view has undergone essential changes, while the official tradition has remained firm. Everyone admits that from time to time a readjustment is necessary between law and morals, but there are many who will refuse to subscribe the program of an unlimited freie Rechtsfindung. It is believed in some quarters that to make of each judge a new Moses would not be a desirable situation either for the law or for society. It is also believed that legal rules are already sufficiently plastic and already involve so large an element of unavoidable discretion in application that to grant in the administration of justice the power to the judge to bridge the inevitable abyss between law and social conscience would be destructive first of the law and then of any reasonable stability of social institutes. Undoubtedly there is an Aristotelian mean between undue rigidity, on the one hand, and formless fluidity on the other, and, to a degree, at least, Geny is representative of the middle course; for he would not put in place of rules spontaneity and instinct. He is a progressivist, but not an anarchist, as has been charged by some of his critics. Natural law