« AnteriorContinuar »
did not limit his plan to the Christian countries of Europe, nor did he have any particular desire to enhance the station of any country, a purpose evident in the Great Design of Sully and the Perpetual Peace of Saint-Pierre. His desire was to do justice to all men and to maintain peace in all quarters of the world. “Why should I," he says,
a Frenchman, wish to harm an Englishman, a Spaniard, or a Hindoo? I can not wish it when I consider that they are men like me, that I am subject like them to error and sin and that all nations are bound together by a natural and consequently indestructible tie, which ensures that a man can not consider another a stranger, unless he follows the common and inveterate opinion that he has received from his predecessors." (Intro. xiii.) He recognized the necessity of commerce and that in order to enjoy the benefits of commerce nations must have peace.
« What a pleasure it would be,” he says, " to see men go freely here and there, and to hold intercourse with one another, without any scruples of country, ceremonies or other such diversities, as if the earth were as it really is, a dwelling place common to all !” (Intro. xii.) To induce universal peace he proposed, to quote from Balch, "a universal union that should include even Persia, China, Ethiopia, the East Indies, the West Indies, indeed all the world. A delicate question was, how to arrange the order of rank and precedence. He suggested as a possible solution of this difficulty, the following order, and some of the reasons for it:
“First: The Pope, in part out of respect to ancient Rome.
“ Second: The Sultan of the Turks, because of the 'majesty, power, and happiness' of his Empire, and also on account of the memory of the ancient Eastern Empire, of which Constantinople was the capital.
“Third: The Christian Emperor.
“ Then the claims of the Kings of Persia and China, Prester John, the Precop (sic) of Tatary and the Grand Duke of Muscovy, must be arranged.
“Next the importance and order of precedence of the Kings of Great Britain, Poland, Denmark, Sweden, Japan and Morocco, the Great Mogul and the other monarchs demanded attention.
"Among other expedients, Cruce proposed to give the first place to the first comer, or to the oldest, or again à tour de role." (Intro. xix-xx.)
In this capacity Crucé appears as a partisan of federation. He was also a partisan of arbitration as a means for the peaceful settlement of
international disputes, and he suggested, in order to render arbitration efficacious, an international court at Venice before which any powers in disagreement should appear in the person of an ambassador to plead their cause. To quote again from Balch, “ Cruce proposed that all the principal sovereigns of the world should always have at Venice ambassadors to represent them in a general assembly of all the nations of the world: and that when any two sovereign potentates should disagree, that then instead of settling their difference of opinion by resorting to arms and war, they should appeal to the judgment of this assembly sitting at Venice, each contestant presenting his side of the case through his own representative in Venice. In this general world-wide assembly, Crucé wished to include the great republics. But the ambassadors of the republics were not to have a vote except in case of a tie. “And if the opinions of the assembly of the Princes or their Deputies were found to be divided into two parts and of equal weight, as may happen,' he says the Deputies of the Republies who would have a deliberative voice could then be called, in order to finish the debate by the counterbalancing weight of their suffrages.' Thus in the rough we find the present Hague International Court sketched out.” (Intro., pp. xvi-xvii.)
Without entering into details, enough has been said to show the general interest of this remarkable work, and Mr. Balch deserves the gratitude of students and scholars for placing it within reach in its original and translated form. The enterprise has been a labor of love, for Mr. Blach has printed the volume in luxurious form and at his own expense and offers it to the public at cost.
JAMES BROWN SCOTT.
Lo Stato Soggetto Del Diritto Internazionale. By Dr. Andrea Rapi
sardi-Mirabelli. Pisa : Direzione Dell'Archivio Giuridico. 1909, 89 pp. L. 4.
The present study is, as we are informed in a foot-note, intended by the author to form one among a series dealing with “Fundamental questions of international law.”
“ The State as the subject of International Law” would hardly appear to furnish a theme capable of much elaboration. Indeed, the author opens by the declaration that the great majority of the definitions of international law define or assume the state as its only subject, and that from this point of view he has merely to deal with one or
two apparent or suggested exceptions. A place has been claimed in this sphere for the individual man as the possessor of certain human or natural rights. Again, an exceptional position has been conceded to the Papacy in the international community. Both of those suggestions are disposed of very summarily. The third proposal which is dealt with is a very curious one supported by certain eminent students of the Italian school of international law, namely that the nation should be substituted for the state as the subject of the science. We have here apparently, on what we generally assume to consider is purely scientific ground, an offshoot of theory which is largely referable to the modern history of Italy and the supreme importance which the idea of nationality as against mere political organization acquired in that history.
It is a useful reminder that in none of those subjects in which human will and sentiment are involved is a purely scientific point of view possible.
A somewhat more extended consideration is given to the condition of a party to civil war, the belligerency of which has been recognized by neutrals. This is in fact recognition as a state, though its effects are for the time limited to certain relations only — those namely which are connected with the laws of war and of neutrality.
Having rejected decisively all the various heresies propounded, and having reaffirmed his acceptance of the doctrine that the states and only the states are subjects of international law, the author proceeds to a historical review of the varying conceptions of the state in that character as it appears in the several schools from the time of Grotius, the father and founder of the science, till our own day.
This historical thread of theory forms a subject well calculated to appeal to Dr. Rapisardi-Mirabelli, and he follows it out at some length. It is enough to say that he distinguishes two main opposing schools of thought, both branching off from their root in Grotius, both reaching once more a kind of unity or reconciliation in the modern eclecticism. The naturalistic school identifies the law of nations with the law of nature — and indeed a very problematic and supposititious state of nature. Against this we have the positive or historical school directing attention rather to the facts and international relations as they exist in practice, supplying a much needed criticism of the tendency towards extreme individualism which existed in the naturalistic school, and gradually forcing the course of the science back into safer ways.
Eventually the great conception of the community of states arises, and with it that of the personality of each several state as a member of that community; and this deeper idea of personality, to which legal rights and obligations can attach takes the place of uncompromising individuality, which appeared to risk loss and self-negation with every concession to the equal and independent individualities around it.
The state as a person then, the subject of rights and no longer, whether as territory or people, the mere object of the rights of a sovereign or superior, is the great discovery of the school of Grotius in the field of theory, the achievement mainly of the French Revolution in practice.
The personality which is here in question, however, is to be limited to a purely legal conception, existing in virtue of the possession by the state of special interests and the will to realize them. It is a creation of law, and this creation which is at the basis of all international relations is objectified in the special and singular case of the recognition of a new nation entering for the first time into relations with existing communities. In virtue of this recognition it steps from a condition of existence in fact to one of existence in law. Here, according to the author, is the true root and foundation of all international law.
The last pages of this study are dedicated to the bearing of the previous argument and conclusion on the systemization of international law. If the foundation is legal personality, and the state as the subject of rights, the classification based on the so-called fundamental or absolute rights of the state, which are practically such as it can exercise apart from and independently of the other members of the international community, is no longer admissible. International law is the law of the reciprocal relations between nations, and it cannot cover any ground on which these relations are non-existent.
The mode of treatment adopted by Dr. Rapisardi-Mirabelli and his conscientious endeavor to present the varying theories on the subject under discussion, tend to make it difficult to retain a firm hold of the logical thread, and to deprive his work of some part of the interest which ought to attach to it. It is not impossible that some compression, an effort to throw into better relief the views which he maintains, and more rigorous exclusion of what does not have direct bearing on the line of argument, would impart greater value to his studies, and it would certainly make them easier reading.
The Effect of War on Contracts and on Trading Associations in Terri
tories of Belligerents. By Coleman Phillipson, M. A., LL. D. London: Stevens and Haynes, 1909. pp. 114.
The author of the present monograph is favorably known by his two studies in international law, published in 1908 and reviewed in this JOURNAL, Vol. II, p. 722. The volume now under review is, its author states, the Quain Prize Essay for the year 1908 in the Department of Law at University College, London. The original essay, we are told, has been somewhat enlarged and brought up to date, and the very important conclusions of the International Naval Conference held at London in 1909 have been incorporated in the text.
International law is such a large and comprehensive system that an author does well and is to be commended who seeks out some important topic and treats it at considerable length. The appearance of monographs on various important phases of international law would not only inform the general reader and the student of international law, but would lighten the burden of him who seeks to present the practice of nations in systematic form. The future of international law is with the monograph
As regards the book under review, it is a pleasure to note that Mr. Phillipson has brought to his task a knowledge of the Continental literature as well as of the leading English and American treatises, and that he has examined the effect of war on contracts in the light of Continental and Anglo-American theory and practice. He has carefully read the leading English and American cases on the subject, has analyzed and distinguished them and stated in clear and concise terms the principles of the law to be deduced from them. The theories of nationality and domicile are carefully considered and the situation of trading companies in enemy territory is examined not only on principle but in the light of actual cases, with particular reference to the decisions arising from the recent war in South Africa.
The reviewer has read Mr. Phillipson's monograph with both pleasure and profit, and he commends it to the general reader and the student of international law in the belief that they will likewise be interested and informed by its perusal.
JAMES BROWN SCOTT.