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In the preface to the present and third edition, dated April 25, 1921, he says:
This, doubtless, final edition of my letters upon War and Neutrality contains. . . the whole series of such letters covering a period of no less than forty years.''
The explanatory commentaries have been carefully brought up to date, all have been fully indexed and the little volume is presented in the belief that "not a few of these questions are sure again to come to the front so soon as the rehabilitation of International Law, rendered necessary by the conduct of the late war, shall be seriously taken in hand.''
The letters number 113 in all. They are brief, ranging from half a page to four or five pages. They are clear and not hesitant in tone. It must be added that they quite uniformly display ripe scholarship and sound judgment. Thoughtless, raw and dangerous change is strongly combated, but the process of evolution and adjustment to new conditions is fully recognized and supported. The American doctrines excite, on Sir Erskine's part, no hostility, but on the other hand often meet with what Emerson calls a "manly furtherance." For instance, in 1900 he declared that the innovations made during the American Civil War on the doctrine of continuous voyage seemed "to be demanded by the conditions of modern commerce and might well be followed by a British prize court," and he had the satisfaction to see these words referred to by Lord Salisbury eight days later. He shows, moreover, that our doctrine, so much decried by European writers, was adopted by an Italian court in 1896 and by the British Government in 1900 (see p. 161) and endorsed, after long discussion, by the Institut de Droit International in 1896.
"The deceased Declaration of London," as he calls it (p. 92), which gave such satisfaction to those who shaped it and which met with such general disaster thereafter, Sir Erskine consistenly regarded with great distrust and almost animosity. He repeatedly records its failure to obtain ratification and the utter breakdown, as a rule for action, of even those portions of its enactment temporarily approved during the late war. He deemed it "nothing more than an objectionable draft by which no country has consented to be bound." He quotes Lord Portsmouth's description of it as "rubbish" with hearty agreement, and shows that an order in council of 1916 revoked all orders by which provisions of the declaration were adopted or modified for the duration of the war. He shows further that the French Government joined the British Government in declaring that they had been disappointed in the expectation of finding in the declaration "a suitable digest of principles and compendium of working rules" (p. 207).
Sir Erskine recognizes the League of Nations as "a brave design," but finds it a serious mistake to "combine in one and the same document provisions needed for putting an end to an existing state of war with other provisions aiming at the creation, in the future, of a new supernational society" (p. 7).
Sir Erskine does not shrink from controversy, but he conducts it with dignity, courtesy, and, it must be added, remarkable success, as many eminent contestants discovered who crossed swords with him in these intellectual encounters, par example, Mr. Gibson Bowles and Mr. Baty.
I am tempted to quote a gallant passage, one of many, in support of the claims of international law. Here it is:
The ignorance, by the by, which certain of my critics have displayed, of the nature and claims of international law is not a little surprising. Some seem to identify it with treaties; others with "Vattel;" several having become aware that it is not law of the kind which is enforced by a policeman or a county court bailiff, have hastened, much exhilarated, to give the world the benefit of their discovery. Most of them are under the impression that it has been concocted by "book worms," "jurists," "professors" or other "theorists," instead of, as is the fact, by statesmen, diplomatists, prize courts, generals and admirals.
This admirable work in its new edition will assuredly continue, as in the past, to be referred to as a valued and high authority. Too much cannot be said of the happy combination of comprehensive, but not pedantic learning, extending to the most recent decisions and acts even of remote and foreign powers, with sound, sober, cautious judgment. Nor can the courage and tenacity be overlooked with which just and needed corrections of popular action or feeling have been attempted and often achieved, when such attempt involved much criticism and hostile feeling, from persons perhaps as patriotic but less wise and thoughtful than Sir Erskine. He fully appreciates, as do most of those who devote years to its study and development, the many imperfections in the law of nations, the many difficulties in its exact ascertainment and enforcement. But such long and deep study and acquaintance has no less assured him of its noble purpose, its vast scope and its profound effect as an aid to justice and to humanity. Long may he continue its wise exponent, its brave and effective defender!
Charles Noble Gregory.
Treaties and Agreements with and concerning China, 1894-1919. By John V. A. MacMurray, Compiler and Editor. New York: Oxford University Press, 1921. 2 vols., pp. 1729. Publication of the Carnegie Endowment for International Peace, Division of International Law. $10.00.
These two massive volumes constitute one of the most valuable of the publications of the Carnegie Endowment. They represent an immense amount of labor upon the part of their compiler and editor. The reviewer has only admiration and gratitude for the painstaking and intelligent care with which this labor has been performed. No one not familiar with conditions in China can form an adequate idea of the necessity for such a work as this. In this connection the reviewer ventures to quote words which he used in the introduction to a volume published by him in 1920 dealing with foreign rights and interests in China. He then said of China:
Probably nowhere else in the world is there such a mixture of territorial rights with foreign privileges and understandings, of purely political engagements with economic and financial concessions, of foreign interests conflicting with one another and with those of the nominally sovereign State. When a national government is wholly untrammelled with regard to the management of its own domestic affairs and has within its own hands the enforcement of law within its own territorial borders, international rights and responsibilities are easily determined by a resort to well-established principles of public law. But when, as in the case of China, we have a Power which permits the exercise within its limits of all kinds of extraterritorial rights and privileges; when there exists within its territory spheres of interest, special interests, war zones, leased territories, treaty ports, concessions, settlements and legation quarters, when there are in force a multitude of special engagements to foreign Powers with reference to commercial and industrial rights, railways and mines, loans and currency; when two of its chief revenue services—the maritime customs and the salt tax—are under foreign overhead administrative control or direction; when the proceeds of these and other revenues are definitely pledged to meet fixed charges on foreign indebtedness; when, at various points within its borders, there are stationed considerable bodies of foreign troops under foreign command—when we have these and other phenomena all carrying with them limitations upon the free exercise by the central government of its ordinary administrative powers or its discretionary right to deal as it deems best with the individual nations with which it maintains treaty relations, we then have a condition of affairs which furnishes abundant material not only for theoretical or academic discussions by students of international jurisprudence, but for serious conflict and disputes between the nations concerned.
Mr. MacMurray, in his volume, has followed much the same principles of selection as those used by W. W. Rockhill in his collections published by the United States Government in 1904 and 1908, except that the arrangement is a strictly chronological one. In addition to treaties and other formal international agreements, less formal declarations and arrangements, loan and railway and mining and other agreements have been included, and valuable footnotes, by way of cross-references, indicate the relations between the several documents. In all cases the English text is given.
Beside seven valuable maps, and an elaborate index, there is a chronological list of the documents at the front of the first volume; there is a similar list arranged according to nationalities.
Mr. MacMurray's volumes supersede Rockhill's two volumes, but, for the period prior to 1894, one must still consult Hertslet's Treaties between Great Britain and China and Foreign Powers (3d ed., 2 volumes, 1908) and Treaties, Conventions, etc., between China and Foreign States (2d ed., 2 volumes, 1917), published by the Inspector General of the Chinese Maritime Customs.
Of Mr. MacMurray personally, it may be said that he has had a considerable number of years' service in the American diplomatic service, much of which has been in the Far East—in Siam, China, and Japan. In Peking he was First Secretary of the American Legation, and in Tokio, Counselor of Embassy. During the last few years he has been Chief of the Division of Far Eastern Affairs in the Department of State, and was the official upon whom Secretary Hughes chiefly relied in preparing for and conducting the recent Conference on Far Eastern Affairs at Washington. It is to be hoped that from time to time Mr. MacMurray will be led to compile, and the Endowment to issue, supplementary volumes that will include treaties and agreements with or relating to China since 1919.
W. W. WlLLOUGHBY.
Handausgabe der Reichsverfassung vom 11 August, 1919. By Dr. Fritz Poetzsch. 2d ed. Berlin: Otto Liebmann, 1921. pp. 226. 17 marks.
This is a type of legal publication common in Germany before the war. It is chiefly a brief commentary, section by section, upon the new constitution of the German Commonwealth. Preliminary chapters discuss the history of the constitution and the characteristics of the new organization created thereby. The author takes the view that in its new form the German Commonwealth is more nearly a unitary state than a federal state. American readers will be particularly interested in the author's comments upon the enlarged powers of the central government, and upon the popular basis of the new government. The experience of the German Government with proportional representation and the referendum will be watched with interest.
In connection with this volume, attention may be called to the excellent translation of the German constitution, made by Professors William B. Munro and Arthur N. Holcombe, and published in the League of Nations, Vol. II, No. 6 (Boston, December, 1919). An article on the new German constitution, by Prof. Ernst Freund, appeared in the Political Science Quarterly for June, 1920 (Vol. 35, page 117). Prof. Freund gives an excellent analysis of the new institutions and the new principles established for the German Government under its republican form of organization. The republican constitution of Germany contains a number of declarations of broad principles of social justice, and seeks to lay the foundation for a broadly democratic political system. However, the constitution must be regarded for a time at least as chiefly a promise of a new type of government and of new principles. The future must see the fulfillment of this promise, for no constitutional text in and of itself vitally changes political institutions. W. F. Dodd.
The Question of Aborigines in the Law and Practice of Nations. By Alpheus Henry Snow. New York: G. P. Putnam's Sons. 1921. pp. 376.
The death of Mr. Snow on August 19, 1920, was a distinct loss to scholarship in the field of international law. During many years he had contributed to scientific publications articles dealing with matters of public law, a number of which have now been collected in a volume entitled "The American Philosophy of Government." In 1902 he published a volume on "The Administration of Dependencies" which bore the subtitle of "a study of the evolution of federal empire, with special reference to American colonial problems." The volume is a constructive examination of the powers of Congress and of the President in the government of American territorial possessions, and is a valuable contribution to the theory and practice of American constitutional law.
The present volume, reprinted posthumously, is the last study from the author's pen. It was originally written in the form of a monograph at the request of the Department of State in the spring of 1918, and was intended, like other studies undertaken at the time, for the guidance of the American delegates at the conference which would settle the issues of the war. The author had practically a clear field before him. As he expresses the situation in his prefatory note, there was "no treatise on the question, nor even any chapters in any book on international law or the law of colonies, to serve as a model or a guide."
The chapters of the volume discuss in succession the relation of wardship between aborigines and the state which exercises sovereignty over them, the rights recognized as belonging to aborigines, the duties of their guardian states, the legal effect of agreements between civilized states and aborigines, and the provisions of the Berlin-African Conference, as well as international action since the Berlin Conference, in particular the provisions of the Algeciras Conference with regard to Morocco.
From the outset a distinction must be made between the provisions of international law with regard to aborigines and the provisions of the municipal law of the several states. On this point the title of the monograph is somewhat misleading, as is also the arrangement of the material of the volume. The provisions of international law proper on the subject are exceedingly restricted, consisting in certain general principles stated in treaties and conventions, such as the act following the Berlin Conference of 1885, to the effect that the signatory powers recognized the obligation to watch over the preservation of the native tribes and to care for the conditions of their moral and material well-being. More definite duties of protection are to be seen in the guarantees of freedom of conscience and religious toleration to be enjoyed by the natives, and of freedom of activity on the part of religious and charitable institutions without distinction or