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"But," declares Dr. Hill in summing up the character of the League of Nations, “Imperialism is imperialism, whether it be joint or single, and it is not a business that tends toward democracy or toward justice;" and one is inclined to wonder whether he has not in mind two famous voyages to France, now recorded in modern history, when he adds: “Even in its purity and its best state it is a dangerous enterprise for a free people to engage in, and it is more dangerous than ever when innocence and good intention become the partners of seasoned experience in a game for power."
Very interesting chapters of the book are those entitled: “The Obstruction of Peace" and "The President's Challenge to the Senate," in both of which there is presented a carefully reasoned argument based upon the unwillingness of the President even to admit criticism of his aims and purposes or interference with his determined will to carry through in his own way what he had it in his own mind to do. He obstructed in that manner, declares our author, the re-establishment of peace, whilst by his attitude toward the Senate he virtually informed thirty-nine Senators, elected by the people, representing more than two-thirds of the population of the United States, that the advice and consent of the Senate would receive no consideration. They might, if they chose, privately regard the League of Nations as a defiance of their judgment and even a violation of the fundamental law of the republic, but they would find themselves in a position in which they would have to accept this document as it had been formulated, or they would be compelled to bear the odium of preventing the conclusion of peace, because the League of Nations would be an essential part of the peace treaty.
Upon this point Dr. Hill has expressed himself in as precise terms, and with as strong a determination as in any other part of his book. His conclusion is that: “It is not necessary to dwell upon this defiance of the constitutional division of the treaty-making power and of the purpose with which that division was originally made and should always be maintained. This defiance assumed what every autocratic usurpation of authority assumes, namely, that power could be invoked to sustain it. In this case it would no doubt be an attempt, in the nominal interest of peace, to bring political pressure to bear upon refractory Senators in order to compel them to yield to a superior will. It requires no reflection to perceive that if this were done and were successful, it would mark the extinction of representative and even of constitutional government in the United States. That it was ever even contemplated indicates a departure from the principles on which our government is based, which should awaken a deep concern for the future and call attention to the perils of autocratic as distinguished from representative democracy."
The book is to be commended to the attention not only of the general reader of political or international subjects, but also of the student of contemporaneous American public questions who desires to comprehend at first hand the import of some of the problems now before the people of this country and likely in one way or another to affect their national influence and shape their destiny.
A Treatise on International Law. With an introductory essay on
the definition and nature of the laws of human conduct. By Roland R. Foulke, of the Philadelphia Bar. Philadelphia: The John C. Winston Co., 1920, 2 vols.
The two volumes consist of 961 pages of text. To the second volume is added a Table of International Persons, so-called, covering 38 pages, and a complete index to both volumes, covering 88 pages, is duplicated and appended to each volume. It should be observed that a preliminary table of contents, covering 26 pages, is found in Volume 1, and that a like table of contents precedes and a full summary closes each chapter. The text is subdivided under many heads, printed in capitals. There are extensive footnotes and citations which often cover more than half and sometimes the entire page, and there are included many cross-references to kindred passages in the treatise itself. By these methods the work is made useful as a hand-book for rapid reference.
The preliminary essay points out the great confusion among writers due to failure in distinguishing the different conceptions of what law is. Mr. Foulke thinks if we cling to one of these, to the exclusion of the others, it is impossible to understand international law. He assumes that law has to do with human conduct, which he defines "as an adjustment of acts to ends," and after discussion propounds the following definition:
Law as applied to human conduct in its broadest signification which will include all possible meanings, is the jural conception of human conduct as influenced by external factors other than forces of nature.
The publisher's circular, after saying that “There is nothing in English which can compare with this treatise” heads a further paragraph concerning it thus: “International Law Made Absolutely Clear."
Perhaps the above definition may not convince us that all diffi. culties are overcome. It ought to be added that Mr. Foulke in ample notes collects and compares the many definitions of Law given by writers. None it is believed has been found wholly adequate and it is too much to hope that Mr. Foulke's will satisfy all critics. The term “jural conception” is one which Mr. Foulke values and very frequently employs. He concludes that Law “has no origin or existence outside the mind of the thinker, although conduct and the external factors are facts which have existed and exist in the world today.”
The second chapter is devoted to “Facts of International Life.' Nations and states are defined and the latter are classified, their acts, recognition, community, equality and jurisdiction considered. “A state,” it is asserted, “is a community of men exerting its power as an organization by its own inherent force and not by a delegation of power from any other organization." It is submitted that any little criminal or rebellious community exercising “its own inherent force," however temporary, would fall within this description, and a band of horse thieves in the hills, preying on the country, would be a state according to this definition. Mr. Foulke would seem to accept it as such since he says “An organization of men for a brief period is a state. ... A mob does not constitute a state because it has no organization.” Not infrequently a mob has a temporary organization and in that case it is a state if we accept Mr. Foulke's test. Pirate crews are not treated as states by the authorities, but this definition would include them as such, and Mr. Foulke declares that they “bear all the marks of a state." It is submitted that the definition is highly artificial and arbitrary and not in accord with the understanding of ordinary men or scholars. If every writer attaches his own meaning to words, neither science nor language is aided. It tends towards Babel and not towards clarification of thought or expression.
The author classifies states as fixed states, moving states, independent states, belligerent and insurgent states, dependent states and neutralized states. This division is, of course, along lines having no coördination, but it is used as showing those often followed. It is
illustrated by elaborate footnotes and many citations to leading authorities. There is added a valuable alphabetical list of states classified with facts and references as to the origin and status of each. This includes many small remote and obscure organizations concerning which information is not easily accessible elsewhere. There is a like annotated list of neutralized states, equally painstaking and comprehensive.
Mr. Foulke says “States are facts and their origin and extinction are facts or events in state life, just as the birth of an individual is a fact in his life," but he distinguishes between the "existence of a state as such and its participation in international life." "every state, therefore, originates as a group of individuals separating from an already existing group.” He discusses the extinction of states and cites the partition of Poland as one of the rare cases of such extinction. Mr. Foulke discusses the Family of Nations (p. 106) and prints a table of those existing as of Aug. 1, 1914, with date of appearance on the international horizon since 1648, showing twenty-six monarchies and twenty-seven republics.
He says "The Monroe Doctrine may very properly be considered a contribution by the United States to the maintenance of the balance of power.”
Chapter 3 is devoted to the “Definition and Nature of International Law," and, like every chapter, is closed by a summary of facts and conclusions.
At page 183 then Mr. Foulke takes up “Substantive International Law." He gives to this six chapters covering Intercourse, Territory, The Sea, Treaties, Independent States and Aliens and State Conflicts. Among the interesting, though brief, discussions is that on Exclusion and Expulsion of Aliens (Vol. 2, p. 8), a right which he fully upholds with many references.
Beginning with Chapter 10 and including nine chapters “Remedial International Law” is treated, including War and Neutrality. The following titles of chapters, Property in War, Public Property in War, Private Property on Land and in Maritime Belt in War, Private Property at Sea in War, and Private Individuals in War, include topics which have become of overwhelming importance since proceedings so much more drastic than had been thought lawful have been adopted in the present great conflict. He reaches the conclusion, however, that rules of warfare “will not be observed by any state whose civilization is not equal to the content of the rules."
As to the use of poison gas and flames, he says: “The international lawyer can really say nothing upon the question of the implements of war, as in no case has any argument ever prevailed to restrain the use of any particular implement, and the question after all is what will be found to be most efficient for the purposes in view.” This opinion accords with that of many naval and military officers and, distressing though it is, this writer has found much difficulty in meeting their arguments. The discussion of neutrality covers some ninety-seven pages and is full and the notes copious and many of the references modern.
Under the title “Private Property on Sea in War,” the topic “Destruction on Sight without Capture” is discussed, and the practice is found indefensible. There is no list of cases cited, but a full list of authors referred to and cases may be found in the twice printed index.
Mr. Foulke has perhaps put the accent more strongly on logic, as he, in a distinctly individualistic way, conceives it, than on precedent or authority, but he has gone to the latter with intelligence and industry. He has not neglected the vast and valuable mass of material to be found in modern periodicals. This illustrates the best recent thought and investigation in modern problems and practices. Its inclusion by references in his notes adds much to the usefulness of his volumes.
This reviewer cannot fully accede to the proposition of Mr. Foulke's publisher that by this work "International Law" is made absolutely clear." To the further statement of the publisher that "To understand international law a person must be something of a man of the world, have a good knowledge of history and economics, the faculty of clear thought, and above all must not let his heart run away with his head," this reviewer would add that a wide knowledge of principle and precedent in the decisions of the tribunals and the writers of authority might be of assistance; that more than in most branches of law the head has yielded much to the heart in international law, which the writings of the great founder Grotius will exhibit and those of Vattel and many moderns will confirm. Mr. Foulke's attempt is ambitious and his performance will be found