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property was plenary, nevertheless the consensus of modern Christian nations was opposed to confiscation or undue harshness of treatment. The great change in conditions of warfare today, whereby war has become, not a conflict of armed troops, but a conflict into which all the industrial and commercial forces and resources of the opposing nations are thrown, may now require a reversion to the older and more rigorous treatment accorded to enemy property. The statute, as drawn, leaves it open to its administrators to adopt such a more rigorous policy if conditions, or necessity of retaliation for acts of Germany, so require. The statute leaves to Congress the final disposition of enemy property taken over by the Alien Property Custodian. It provides for a large extension of the term "enemy" by the President whenever he shall deem that conditions demand such extension and he has made such extensions since the date of writing of this book).
It is entirely possible that conditions ascertained since its passage may also render necessary certain amendments in order to perfect the de-Germanization of so many American businesses which, we now discover, have been absorbed by German capital and German interests, and in order to avoid the accumulation of profits for the benefit of Germans after the war. But even if the statute shall be so amended,
Ir. Huberich's book will still remain, because of its thorough statement of the general principle of the law, a necessary guide to all who desire to know how far their commercial operations will or will not be valid.
Three Centuries of Treaties of Peace and their Teaching. By the Right
Hon. Sir Walter G. F. Phillimore, Bart., D.C.L., LL.D. 1
“The history of human legislation is a record of error and presumption," said the Hon. E. G. Ryan, Chief Justice of Wisconsin, in a somewhat famous address nearly fifty years ago. The history of treaties of peace certainly has a considerable resemblance to the record of legislation. Yet the only advice for the future open to us is derived from the past. A study of all that men have attempted to seal up “The purple testament of bleeding war” since the time of Grotius, founder of modern international ideas, is obviously opportune and timely, and Sir Walter deserves our thanks for undertaking it.
1 The announcement that Sir Walter has been advanced to the peerage, taking the title of Lord Phillimore, arrives as this review goes to press.
No man by heredity, taste, experience, and acquirements could be better equipped for the survey and presentation of this broad subject. The oldest son and heir of the late Sir Robert Phillimore, who was the author of the celebrated commentaries upon international law and an eminent judge in matters of admiralty and the law of nations, Sir Walter has maintained the reputation of the father both upon the bench and as a publicist. Sir Robert's magnum opus is perhaps the most considerable and authoritative of the English compendiums in this noble branch of law, and Sir Walter has to his credit its second and third editions. He has served as President of the International Law Society, and those of us who assist at its sessions know the zeal and interest he has always displayed for the society and the commanding position he holds in it. Sir Walter is also one of the chief laymen in the Church of England and one of the greatest authorities in all pertaining to its law, history, and policy. Many American and foreign scholars have known and enjoyed the very generous hospitality of his London residence, Cam House, Campden Hill, immediately adjoining and rivaling, with its groves, lawns, and gardens, the yet more famous Holland House. It was, until the time of the late duke, Argyle Lodge, the town house of the Dukes of Argyle. A rambling gothic house called The Coppice, at Henley on Thames, surrounded by an estate of some five hundred acres, was inherited by Sir Walter from his father, who, though opposed to such laws, availed himself of one of the last of the enclosure acts and so acquired most of this tract.
In this charming old house interest seems to center about a beautiful painting of Hugo Grotius, with clear-cut aquiline face and white Elizabethan ruff, which hangs on the wall, mellowed and made venerable by nearly three hundred years of time. This portrait was bought by Sir Robert from The Doctors' Commons on their dissolution and is reputed to have been presented to them by Grotius himself on his becoming a member of that learned body. Sir Walter prints an admirable reproduction of it as the frontispiece of his book, and dedicates his work “to the memory of Grotius,” under whose portrait, he adds, “much of this essay has been written."
In the preface of four pages outlining the purpose and scheme of the book, Sir Walter says his excuse for the work is that “We are all looking forward to the future peace. We are longing for it.” At the same time we are conscious of the difficulty of making a sure and lasting peace. “Never was there a war," he says, “in which so many
nations were engaged, never has there been a settlement of so many questions as this. peace will have to settle,” involving the creation, dissolution, and division of states, their future tranquillity, and, if war recurs, restraints against savagery or barbarism. To aid these ends he conceived and has here presented "an historical analysis of past Treaties of Peace" as a guide for the future.
He finds “the direct origin of the present war ... in the treaty which concluded the Franco-German War, in the Balkan settlement made by the Congress of Berlin, in the lasting unrest of Poland and in the ambitions and military dominance of Germany.” He treats the Franco-German War as “an ending of the constitution bequeathed by the Congress of Vienna." He thinks, in turn, that constitution was due to the Emperor having lost his position as ruler of the Empire since the Seven Years' War and because of the position acquired by Prussia in the Treaties of Aix-la-Chapelle and Hubertsburg; that the Peace of Westphalia, admitting the practical independence of the several German units, gave Prussia her opportunity, though her rise to a chief place among these units has to be traced back to the Treaty of Oliva and the displacement of Sweden as chief of the Baltic Powers.
The partition of Poland, while aggrandizing Austria, Russia, and Prussia, "brought these three great states into overclose neighborhood, joined them for a time in a common purpose, but ended by making them jealous and fearful of each other; so that Prussia, now become Germany, could justify her vast armaments as a necessary precaution against the attack of France on one side and Russia on the other.”
Some of the European treaties, however, he thinks “accomplished their object; many were useful for a time; some would have procured a long peace but for unfortunate dynastic accidents." He seeks to draw "profitable lessons" from their success or failure, and to deduce "some assistance and some warnings for the future treaty.” Moreover, he aims at the prevention of war and its humanization when it can not be prevented. He says: Treaties of the eighteenth century give us lessons in regulation (of war), treaties of the nineteenth in humanization; while the twentieth century began with attempts at prevention, imperfect unhappily and too weak to stand severe strain, but not without value as guides to a more perfect scheme in the future.
The first chapter is headed, “Conditions of a Just, Lasting and Effective Treaty of Peace.” Sir Walter there says: “Retribution,
no doubt, there should be” as a deterrent, but it “should not take the form of depriving states of population and territory without regard to the wishes of the population of the ceded territory or without due consideration of geographical lines.” He insists that we are not, as in past times, dealing with monarchs as if they were proprietors. . . . We are dealing with peoples and nations. They must suffer, no doubt, for the wrong-doing of their Governments, but they should not be permanently severed from the country to which they are attached, nor put in subjection to an alien rule, merely in order to punish their former country for engaging in war.
Sir Walter says, “Retribution is best exacted in money, in munitions of war, in ships, or by the destruction of fortresses and war material. Perhaps also in the punishment of those who stirred up the strife.” He thinks "distributive justice" the principal object of the treaty, having regard to the safety of every state, small or large.
He states nine maxims, so called, as the foundation of treaties. Some of them, however, seem hardly to possess the form and condensation of maxims, but are rather argumentative and extended statements or observations. To summarize them briefly, however, they are as follows:
1. Boundaries between states must be natural according to geography or orography, well marked, strong for defense, not tempting to aggression.
2. If possible, no state composed of people desirous of union should be divided.
3. The doctrine of balance of power can not be forgotten while states and rulers remain ambitious and covetous. (He adds that the alternative of a League of Peace would find more favor if not for the unsavory memory of the Holy Alliance of 1815.)
4. The treaties should operate immediately and finally and impose as future obligations only observance of the laws of nations and the preservation of peace.
5. No burdens should be laid impairing sovereignty or independence. (These he says "tend to produce irritation and war," and have not generally endured.)
6. Protectorates or suzerainty are objected to; also treaties of guarantee, as sources of future trouble.
7. In cases of grave necessity, where the dominant state is much
benefited and the servient little harmed, protectorates have sometimes worked well. (Sir Walter suggests that a protectorate with guarantee may prove the only way of dealing with Turkey.)
8. No treaty imposing special obligations ought to be expected to be perpetual.
9. That there are treaties, like those of Napoleon with Austria and Prussia, which impose such restraints that no reasonable politician can expect them to endure and which are but scraps of paper in the absence of material guarantees.
Sir Walter also deems the form of treaties important. Vague language must be avoided. After the present war the so-called "amnesty clauses" must be modified and improved, particularly as to restoration of prisoners, dealing with the enemies charged with military or common-law crimes, and the dealings of those in occupied territory with their conquerors. He says provisions as to the laws of war are not generally found in treaties of peace, but in those of commerce and navigation, or in the acts of congresses like those at The Hague; but that after this war they ought to be inserted in the final treaty of peace, first, to make war less inhuman, second, to prevent war, by taking away from some nations the temptation to rely upon their superior capacity of committing atrocious acts as an element of success in war.
The list of authorities cited by Sir Walter is limited. Continental authorities as Pufendorf and Vattel; such English names as Twiss, Hall, Maine; such well-known modern names as Westlake, Oppenheim, and Lawrence; such American scholars as Halleck, Wharton, Moore, and Woolsey and, in general, the Germans are not referred to. Our ancient and admirable classic, Wheaton, is about the only American scholar named. The special character of the subject may, however, account for this frugality.
Sir Walter believes that the great settlement at the Congress of Vienna in 1815 is the precedent which must be in the minds of those who will frame our peace. He finds in it encouragement and also warning. It closed twenty-three years of war, involving all of Europe and portions of Africa, Asia, and North and South America. The main treaty has 121 articles, and the diplomatic instruments connected with it cover 227 pages. France had been the great conqueror, but suffered ultimate defeat. She was put back to her old boundaries and lost various colonies to Great Britain and to Spain. All these arrangements proved enduring. The readjustments in Italy, in which the interests