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than 200 titles. The citations are largely to monographs upon special topics, but two works are habitually and throughout referred to, namely, Fauchille's edition of Bonfils' Manuel de Droit International Public, which is taken to represent the European continental view, and Professor John Bassett Moore's Digest of International Law, which, I take it, is thought to exhibit the English and American view. The author also expresses his especial obligations to Prof. Hershey's Essentials of International Public Law.
The cases are arranged in thirteen groups or chapters dealing with allied themes. Many of the older decisions selected are different from those included in the well known and standard collection of cases in international law edited by the late Dr. Freeman Snow of Harvard and revised and greatly enlarged by Dr. James Brown Scott. Of course, many of recent date could not be included in the older volumes.
The list of authorities cited, other than judicial decisions, covers six pages in the statement of contents, and the extended reference to legal periodicals and monographs seems a valuable and somewhat novel feature in this collection.
Among the more modern passages cited which have especial interest this, from the Higher Prize Court of Japan (see p. 14), enforces a view sometimes overlooked by students:
The rules of capture at sea resolved upon by the Institute of International Law at Turin ... are nothing more than the desire of scholars, open to further discussion by the Powers. Under international law they have no authority. ... As to the advocates' vague argument for governing the solid business of the day by the principles of universal benevolence, it is inadmissible. It ignores the fact that war is indispensable in the present state of international intercourse.
Another modern case given in part is Mortensen v. Peters, 14 Scots Law Times, R., 7, a decision by the High Court of Justiciary of Scotland, rendered in 1906. This reviewer has called attention in print to the fact that the Ambassador of Great Britain (Lord Bryce) intimated in writing that the British Government had not adhered to the doctrine of that case, though perhaps this may not impair its authority as to the special point to which it is here cited, namely the relations of international law to municipal law.
The new work cannot well replace the more extended collection of Dr. James Brown Scott (founded on that of Dr. Snow) covering nearly 1000 pages, especially if the older compilation is brought to date, as
is purposed, by a new edition. Dr. Evans' volume, however, has a distinct advantage in its condensation, its modernity, and its extended reference to authoritative periodical monographs, often so difficult to discover and yet so illuminating and convincing when found. In these points the new work must prove of especial convenience and value.
CHARLES NOBLE GREGORY.
International Conventions and Third States. By Ronald F. Roxburgh.
London and New York: Longmans, Green & Co. 1917. pp. xvi, 119. $2.50.
This is one of the “Contributions to International Law and Diplomacy,” edited by Professor Oppenheim. The author is an English barrister, and was recently a Whewell international law scholar at Cambridge. His general conclusions postulate two leading principles. One is the existence of a “Family of Nations," which family, as to certain relations, is to be regarded as a unit. The other is that "the express or tacit consent of all states of importance is essential to permanent neutralization" (p. 71).
He refers the proof of any rule, claimed to be of force in international law, solely to the consent of the members of this family (p. 73). If some of them make a treaty which introduces, as to some particular matter, a new rule affecting states not signatory Powers, one or more of those states may, with the consent of those who are the signers, come in to share its benefits or obligations, but in the absence of such a consensual act the treaty can only become a rule of international law by long and unanimous recognition of it, as such, by the general Family of Nations. Such unanimity he would not require to be absolutely complete. Small Powers must expect to submit to rules which greater ones generally accept. International law grows by custom and long practice; and, independently of contract, is their proper and authoritative product (p. 74). A usage of nations the author regards as not less than a custom, necessarily implying that the nations concerned act under the conviction that it is legally necessary to act in that particular way (pp. 76, 77, 91). In other words, they must realize that their practice recognizes a certain rule as in fact law already, which their recognition confirms and makes one de jure.
But who is to say if a custom of nations exists? Municipal law has its rules of evidence and definitions as to claims of a custom between
men. International law has no such aid, and no such fetters. It preserves its elasticity at the cost of precision (p. 79).
Mr. Roxburgh draws a distinction between international law and universal international law. The latter is the natural and almost necessary result of the former, but it is not identical with it. The Declaration of Paris may now fairly be deemed a part of international law, but the refusal to accede to it for so many years by the United States and Spain made it something less than universal. Spain's final adhesion has hastened the end, and it is not probable that the United States will much longer isolate herself from the civilized world in claiming the right to reintroduce privateering (pp. 92–94). The situation would have been the same had the sole nonassenting Power been, not the United States, but the weakest of independent nations (p. 103).
Westlake's theory of “Imperfect Rights” Mr. Roxburgh rejects (p. 99). A right, conditioned or unconditioned, must, as to a stranger to a contract (within the limits of the condition if any), be absolute, or it is nothing.
The author would put in a class by themselves, as “International Settlements,” treaties between the leading Powers, intended to be of binding force upon or in favor of the whole "International Community." If the nonsignatory Powers abide by such a treaty, and come to believe that it is so binding on them by international law, then it is so binding upon them and is international law (p. 82). The cause of its being such is the effect of considering it such; though this may have no better foundation than a mistake of what constitutes a legal obligation. Here again the notion of the unity of the Family of Nations is invoked to support the doctrine for which the author contends (p. 84).
International rivers form a natural subject for its application. "The widespread conviction that today free navigation is postulated by an universal international rule is strong evidence that where free navigation is already enjoyed, it is enjoyed of right apart from treaty" (p. 88).
International servitudes are briefly discussed, and their character as, if anything, being rights in rem, sharply distinguished from rights by contract, though these be real rights (p. 106). International leases the author regards, when either party subsequently is at war with a third state, as amounting, for the purposes of the war, to a transfer of sovereignty to the lessee (p. 110).
The book is clearly thought out and well arranged. There is little of repetition, and the author confines himself closely to his immediate subject. He has, however, some favorite turns of expression which he makes pets of. Anson, in his Law of Contracts, quotes from the year books the phrase that “the devil himself knows not the thought of men.” The quaintness of this statement makes the author repeat it twice, with a solemn reference each time to his authority for it (pp. 48, 79). So he reiterates half a dozen times the maxim of modernized Roman law, Pacta tertiis nec nocent nec prosunt, but makes no reference to the more definite statement of the nec nocent rule in the Digest, II, 14; de pactis, 1, 27. $ 4.
SIMEON E. BALDWIN.
War in Disguise; or the Frauds of the Neutral Flags. By James Stephen.
1805. Reprinted from the third edition. Edited by Sir Francis Piggott, with an introduction by John Leyland. London: University of London Press. 1917. pp. xxxiv, 215. 6s. net.
It does not often happen that a book of permanent value, written by one of the prominent lawyers of the day and which passes through three editions at home and two editions abroad within five months of publication, is so completely lost sight of by succeeding generations as has been the case with James Stephen's War in Disguise. When Sir Francis Piggott undertook the present publication of it, so rare had copies of the third English edition become that it was impossible to obtain one for the use of the printer, and it was necessary to photograph the copy in the British Museum.
The interest of the present generation in the personal history of James Stephen is enhanced by the fact that he is the ancestor of Edward and Albert Venn Dicey and of Sir James Fitzjames Stephen, and the brother-in-law of Wilberforce, in whose agitation against the slave trade he bore an active part. His interest in that subject had been aroused by his experience as a practitioner at the Bar of the West Indies, where he also had opportunity to witness the use made of neutral flags as a means of covering contraband trade. When he took up his residence in London as a practitioner before the Prize Court, he could speak of the Rule of 1756 and of the doctrine of continuous voyage with a full knowledge of the commercial transactions which brought that rule and doctrine into existence. He was largely re
sponsible for the Orders in Council of 1807, and the pamphlet now reprinted, which issued from the press on the day that Trafalgar was fought, was a defense of the principles upon which the policy of the British Government toward neutral trade with the enemy was based. The influence of the work upon English thought and policy was thus stated by Lord Brougham: “It is impossible to speak too highly of this work, or to deny its signal success in making the nation for a time thoroughly believe in the justice and efficacy of his Order in Council.”
In his thoughtful introduction to the present edition, Sir Francis Piggott points out that one of the great merits of Stephen's pamphlet was his clear exposition of the principle upon which belligerent interference with neutral trade, whether by blockading the enemy or by the capturing of contraband, is based. There is no particular magic in the term “blockade,” or even "effective blockade," or in the term "contraband." These are simply two examples of the principle that a belligerent is justified in preventing a neutral from rendering any assistance to his enemy. If the neutral devises means of assisting the enemy which are not covered by the long-established rules of blockade and contraband, it must be expected that the belligerent will prove equally inventive in devising means to counteract such assistance. The present war has furnished many examples of this.
Since the beginning of the present war there have been many illfounded statements as to the new situations which have arisen, and which will necessitate the re-formulation of the rules of international law. An examination, however, of the principles involved will show that the difference between the legal questions arising in the present war and those in previous wars are more superficial than real. The prize decisions made during the past three years by Sir Samuel Evans and by the Judicial Committee of the Privy Council follow very closely the lines laid down by Lord Stowell, and a reader of Stephen's pamphlet might easily believe that his statements with regard to the commercial policy of the enemy and the attitude of the United States as a neutral applied to the first years of the present conflict.
Sir Francis Piggott has rendered an excellent service by the republication of this pamphlet, which he has made easy to use by his notes and by his excellent introduction. The short study contributed by John Leyland entitled “1805” helps to visualize the situation in which the pamphlet was written.
LAWRENCE B. EVANS.