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adviser in these matters, has been in close touch with every step of their development, and involving problems of jurisprudence upon which, as an accomplished international lawyer, the author is able to comment in a most instructive manner.
From the point of view of the international jurist there is, no doubt, much that is debatable regarding the rights and duties of neutrals and belligerents; for upon many points the law of nations is not only indefinite but imperfect. Dr. Scott has, however, not found it difficult to justify the course of the Government of the United States both in its complaints of violation of neutral rights by the belligerents and in the defense of the conduct of the American Government in the course it has pursued. Very effectively, so far as complaints emanating from Germany and from German sympathizers in this country are concerned, he has appealed to the standard of neutral right and duty as set forth in the German Kriegsbrauch im Landkriege, which presents a rather lax conception of neutrality as compared with the standards and practice of the United States. Undoubtedly, the inferiority of Germany in sea-power rendered the relations of that country and the Entente Allies with the United States very unequal; but this fact was in no respect a fault of the American Government. An attempt to destroy that inequality in the interest of Germany would have been a violation of neutrality so gross as to be utterly indefensible and would have offered a casus belli to the governments against which it would have been directed.
There were, undoubtedly, restraints upon commerce on the part of the British Government against which, in the interest of American commerce and the American conception of neutral rights at sea, the Government of the United States was fully justified in protesting, and against which it did protest; but these were never of a nature that demanded a declaration of war. They were of a nature that rendered possible material compensation, and that this upon proper adjudication would be offered, was never denied on the one side or doubted on the other. But the German violations of neutral rights were of a different character. They struck at noncombatant life a deadly blow by the use of the submarine. They assumed an exclusive control of vast areas of the high seas. They sank neutral ships, with their noncombatant crews and passengers, without observing any of the legal requirements of warning and search, and they did this in an unexampled spirit of insolence and ferocity in waters closely adjacent to the shores of the
United States. All this is fully and impressively recorded in this volume, and it is the resort to this menace and violence more than any other cause, though others were not wanting, which, in the opinion of Dr. Scott, not only justified but necessitated the declaration by the United States of a state of war in which Germany was the aggressor.
As a foremost advocate of an international court and of the judicial settlement of international disputes, it might be expected that, somewhere in this volume, Dr. Scott would raise the question, which he so ably answers in the eighteenth chapter of this work, “Why not Arbitration?” The section on the German attitude toward arbitration recounts the position on this subject taken by Germany in the two Hague Conferences and the efforts of the American Secretaries of State to negotiate with Germany a treaty of arbitration. In the midst of all importunities, the Imperial German Government has stood aloof from arbitration; which, if adopted, might have prevented the Great War altogether, for the alleged reason for resorting to war was a judicial question. Certainly, the United States could not allow murder on the high seas to go on indefinitely, in the expectation that there would some day be a judicial settlement in which the only penalty would be a money indemnity. The futile efforts of the United States to secure an arbitration of the case of the William P. Frye sufficiently demonstrates the impracticability of an attempt to settle by arbitration the differences which had arisen between the American and the Imperial German Governments. The problem before the United States was the prompt compulsion of Germany to abandon a career of crime.
In a final chapter the author of this volume touches the problem of "The Freedom of the Seas," which he considers largely from a historical point of view, especially with reference to the meaning of the expression “the high seas,” ending with the fundamental principles laid down by Grotius. Here, without doubt, taking into account the actual status of sea law, much progress is yet to be made when the nations are ready to reopen this vast subject. So long as war is regarded as permissible, there will be certain rights of belligerents on the sea; but so long as innocence is considered inviolable, neutral rights will be even more evident. The problem of adjusting these conflicting claims depends upon postulates of equity and a growth of opinion regarding peace and war which will in the future give a new aspect to the laws of the sea; for the interests of peaceful commerce will unquestionably outweigh the interests of international conflict.
Regarding Dr. Scott's book as a whole, it is throughout scholarly in its method and workmanlike in its execution. Abundant notes point to supplementary reading, a good index renders reference easy, and the style is clear and forceful. The volume is quite indispensable to the international lawyer, will be extremely useful to the historian, and has much interest for the general reader. The dedication of the volume to the Honorable Robert Lansing, Secretary of State of the United States, is most appropriate; and the direction that the royalties due to the author be presented to the Department of State War Relief Work Committee, of which Mrs. Robert Lansing is President, is in the high spirit of patriotism and devotion to human welfare that marks the work and the life of Dr. James Brown Scott.
DAVID JAYNE HILL.
The Law relating to Trading with the Enemy together with a Consideration
of the Civil Rights and Disabilities of Alien Enemies and of the Effect of War on Contracts with Alien Enemies. By Charles Henry Huberich. New York: Baker, Voorhis & Company. 1918. pp. xxxiii, 485.
When the United States entered the war in April, 1917, the general principles of law relating to the status of alien enemies and to trade with the enemy were already well settled by the decisions of the courts of this country in the early part of the nineteenth century and during the Civil War, as well as by the decisions of the English courts prior to and during the present war.
There was, however, no existing statute under which criminal penalties could be imposed for illegal trading. Moreover, legislation was imperatively necessary on the subject of enemy trade, in order to meet the new conditions of modern economic life and of modern warfare. The enemy had allies whom it became necessary to treat in law as enemies of the United States even though we were not then at war with these allies. It was also evident that the term “enemy" must be extended beyond its common-law sense; neutral countries were filled with German subjects, naturalized Germans, and German sympathizers, whose business activities in aid of Germany must be curbed so far as their connection with our own citizens was concerned. The common law did not in this respect meet the necessities of the case; and legis
lation was needed to amplify the scope of the classes of persons who, for the purposes of the Act, might be treated as “enemies” by the United States. The term “trade” as used in the Napoleonic Wars, the War of 1812, and even the Civil War, was not sufficiently broad to cover all the actions which it was desirable to prohibit during the present war. The complexity and development of modern business demanded greater stringency in certain directions than the old judicial decisions provided for. In former days, trade consisted almost wholly in the actual sale and transfer of commodities; today the building up of assets, funds, and credits in this country and their transfer by letter, cable, or wireless demanded rigorous supervision and prevention. A new method of dealing with the large German property interests in this country was proposed, which required legislation, viz., the taking over of such property by the government and the investment of its proceeds in government bonds — thus conscripting the enemy's property and fighting him with his own money, while at the same time conserving his money in the safest investment.
The Trading with the Enemy Act, of October 6, 1917, was drafted, therefore, with a view to deal with these new conditions of modern warfare. It was intended to supplement the previous law as developed by judicial decision; in some directions it was designed to change the previous law; but it was not designed to codify the whole law upon the subject, and it specifically provided that the common law should govern in all matters not within the scope of its enactment. It left, therefore, many important topics to be determined very largely by the common law or by State laws then in force — topics like the effect of war upon contracts; interest on debts due to enemies; devises and bequests to enemies; suspension of statutes of limitations; termination of agency, etc., etc.
Because of the fact that the statute was not intended as a codification of the whole law of enemy trade, the volume now under review is of great importance, presenting as it does, not merely a commentary on the statute, but also a very complete statement of the law as it existed prior to the statute's enactment. Indeed, a work of this kind is almost indispensable to every business man, as well as to every lawyer, since never before in history have the commercial transactions of this country been so largely regulated by legislation, or been so extended in foreign trade.
It is fortunate that the preparation of this book has been undertaken
by so competent an author. Mr. Huberich is not only a lawyer of New York whose practice has been intimately concerned with the topic treated by him, but a former professor of law at Leland Stanford Jr. University. His book is not a mere hasty compilation of authorities put forth to meet a sudden demand for a book on a subject little known to lawyers of today. It shows throughout long and careful study and a thorough acquaintance with the underlying principles, not only of the general law of the subject, but also of the particular statute in question and of similar legislation in other countries. The author does not content himself merely with a statement of the law, but offers helpful comments and suggestions as to the construction, the omissions, and the inclusions of the statute. The citation of cases appears to be unusually full; on some few topics, however, further cases might be found, notably on the question of the effect of war upon the statutes of limitations, as to which the able article by Professor Charles Noble Gregory in the Harvard Law Review, Vol. XXVIII (May, 1915), might have been consulted with advantage. (In fact, in this book, as in many modern law books, it would be of great assistance to the reader if authors would cite the many important articles in leading American and English law reviews on the subjects treated; such articles on the law of trading with the enemy having been particularly valuable and numerous since 1914.)
The scope of Mr. Huberich's book is satisfactory; it starts with a brief summary of legislation in France, Italy, Russia, Japan, Germany and Austria-Hungary, Turkey, and the British Empire (the British Statutes and Orders in Council, 1914–1916, being given in full in the appendix); it then treats of the legislative history and general purposes of the Act of October 6, 1917. It then takes up the statute, section by section, and sentence by sentence, discussing the scope and intent of each, and stating with considerable fullness the decisions of the American and English courts on the particular phase of the subject of the legislation. The preface of the book is dated February 1, 1918.
The intent of those who drafted, those who approved, and those who enacted the statute in question was to conform to the more enlightened and modern view of warfare, namely, that the rigors of war should not fall on private persons or property of the enemy any more than was necessary for the safety of the State. As long ago as 1814, Chief Justice Marshall declared in Brown v. United States (8 Cranch, 110, 122) that while the power of Congress over enemy persons and