Imágenes de páginas
PDF
EPUB

THE CLASSICS OF INTERNATIONAL LAW

1

An editorial comment in the July number of the JOURNAL upon the proposed republication of the Classics of International Law outlined in general the project undertaken by the Carnegie Institution. A note from the honored pen of Professor Nys, while approving the project as a whole, called attention to certain infelicities of detail which he hoped to see eliminated from the project. Professor Nys' objections were twofold: first, to the photographic reproduction of the texts; and, secondly, to the English translations proposed to accompany them. In view of the friendly source from which these criticisms emanate and of the real importance of the undertaking, a word of explanation seems advisable.

The photographic method of reproduction was adopted by the Carnegie Institution in order that the exact text of the masterpiece might be reproduced without the possibility of introducing modern misprints or mechanical errors of any kind, so that the student might have before him the source without modification or emendation; for it is to the source as such that the student must resort. Professor Xys calls attention to the misprints, mistakes and abbreviations of the early editions and con. siders it a mistake to perpetuate them by photographic reproductions. Admitting the force of this view, it is met by the statement that each text will be accompanied by an apparatus criticus in which the mistakes of the text will be signalized and corrected, the abbreviations explained. with comment by the editor upon difficulties and obscurities of the text.

It is to be noted that the objections of Professor Nys apply more particularly to the precursors of Grotius and that the texts of Grotius and his successors are comparatively free from abbreviations requiring explanation. It seemed therefore to the Carnegie Institution possible to meet the objection formulated by Professor Nys by adopting a slightly different method of treatment for the predecessors of Grotius without essential modification of the plan and without losing the advantages of photographic reproduction. The earlier texts will therefore be photographed from the original and will be accompanied by a carefully prepared, revised and critical text by the competent individual editors to whom the various texts are entrusted, and the translations will be made under the supervision of the respective editors from the text thus revised. The result will be the exact reproduction of the original source, a modern

1 Revue de droit International et de Législation comparée, second series, Vol. 11, pages 484-485.

text free from the mistakes, inaccuracies, ambiguities and abbreviations of the original text, and a translation for the English reader.

If the student is satisfied by the reproduction of the source and the corrected text, there can be no objection to supplying a translation for the needs of English readers, especially as the translation will appear in all cases as a separate volume.

Professor Nys calls attention to the difficulties of translation and asks who will make them, to which it is replied that the respective editors will be responsible for the translations made under their supervision by competent Latinists; for example, Professor Holland of the University of Oxford is engaged in the preparation of Zouche's Judicii Fecialis (1650), for which he will furnish an introduction, an apparatus criticus, and be responsible for the translation now in course of preparation by an expert Latinist of his own selection. In the same way Professor Westlake has undertaken the preparation of Avala's De Jure et Officiis bellicis et disciplina Militari (1582) and the translation is likewise to be made by a Latinist of his choice and under his personal supervision. It may be stated further that Professor llolland has undertaken the preparation of the three masterpieces of Gentilis: De Legationibus (1585), De jure belli libre tres (1598) and the Advocatio llispanica (1613). In addition he will edit Legnano's treatise De bello, de represaliis, et de duello (written in 1360, but first published in 1477). Each one of these works will be reproduced photographically and wherever necessary will be accompanied by a modern critical text from which the translation will be made by a competent Latinist selected by Professor Holland and under his supervision.

It would appear, therefore, that the objections by Professor Vus are more than met by the Carnegie Institution, which offers the learned student the source, the modern Latinist a revised text, and the average reader an accurate translation, so that the purpose of the Carnegie Institution to popularize international law by making known its sources is likely to be realized. The selection of competent editors of various nationalities, such as Messrs. Renault, Fauchille, de Lapradelle and Politis from France, Holland, Westlake, Lawrence and Oppenheim from England, Asser from Holland, Jellinek and Zorn from Germany, Lam masch from Austria, Matzen from Denmark, Meili and Huber from Switzerland, Nys from Belgium and Fiore from Italy, is at once a guarantee of accurate scholarship and incontrovertible evidence that the series will be international in fact as in theory.

ABATEMENT OF AN INTERNATIONAL NUISANCE

Recent diplomatic correspondence between Mexico and the United States discloses an incident of no slight importance in itself and offers a striking example of how the principles of the common law may be applied by analogy to the settlement of international disputes. Briefly stated, the legislature of California in the year 1908 passed the antirace track and gambling bill, intended, as the title implies, to prevent, within the State of California, gambling and the lawlessness and disorder usually associated with the race track, and in order to prevent the evils incident to the race track made race-track gambling an indictable offence. As a result of this legislation, the promoters of the race track were unable to pursue their calling in California without rendering themselves liable to the penalties of the statute. By indirection they endeavored to find direction out, and it occurred to them that a race track established in Lower California in Mexico within a few miles of the American border would enable them to circumvent the laws of California and realize a handsome profit, for if the track were established at Tia Juana, some sixteen miles from the city of San Diego in southern California and within easy railroad connection of Los Angeles, they would be able to appeal to the sporting elements within California without bring. ing themselves within the reach of the California statute. A concession was therefore obtained from the Mexican Government for the establishment of a race track at Tia Juana and arrangements were made for opening the race track in the very near future. The residents of San Diego and of the adjoining country immediately called the attention of the Department of State to the matter and requested that representations be made to the Mexican Government, for if the race track were established in such close proximity to southern California the evils which the statute had sought to prevent would not be suppressed. The town of Tia Juana has but a handful of inhabitants, is in reality a customs station, and is geographically and socially separated from Mexico. The patrons of the turf would be Americans, a flourishing town would spring up for the sole business of promoting gambling, the devotees of the sport would be drawn from the United States and would enter Tia Juana by San Diego and its vicinity and after the races would return to the States via San Diego. In other words a nuisance would be created on the confines of San Diego which the respectable element of southern California requested the influence of the Department of State in order to abate.

The Department of State considered the objections to the establishment of the race track at Tia Juana well founded, and without denying the right of the Mexican Government to grant a concession within its territory, nevertheless called the attention of the Foreign Office to the fact that although Mexican in name, the enterprise was really American in fact and that its sole purpose was to evade the laws of California to the great prejudice of the American inhabitants in the neighborhood of the boundary line between the two countries. The Republic of Mexico gave immediate attention to the request of the Department of State and, on July 6, 1909, amended the regulations on gambling for the territory of Lower California in the following manner:

Sole Article. Horse-racing in the Northern District of Lower California is hereby forbidden.

Transitory Article. The above provision shall take effect on the first day of October next, thus amending for the Northern District of Lower California and according to the above terms, article 1 of the Regulations of December 12, 1907.

There can be no doubt that the United States was justified in calling the attention of Mexico to the attempt of an American association to take advantage of Mexican laws for the sole purpose of using the Mexican frontier to circumvent the laws of California, and the prompt action of Mexico is but another evidence of the traditional friendship existing between the sister Republics. California could not communicate directly with Mexico, for by the constitution of the United States the States surrendered their initiative in foreign affairs to the Union, and in acting for California at its request the United States was practically the agent for California.

It has been said that the Tia Juana incident was in terms of private law a nuisance, and the action of the United States and Mexico was in terms of the common law an abatement of the nuisance. It is well known that a nuisance may be abated by application to the courts of common law or enjoined by a decree in equity, but the right of selfredress exists although its exercise is hazardous. 3 Blackstone's Commentaries 5; Pollock's Torts, 8th ed., p. 404. Two examples will be taken in order to make clear the principles involved and the advantages of abatement through diplomatic channels or by judicial action.

In 1837, during the Canadian rebellion, the territory of the United States was made the basis of hostile operations, and the steamer Caroline, while within the territorial waters of New York, was seized by a party under the command of one Alexander McLeod, an officer of the British

Government, burned and sent over the falls of Niagara. In the struggle
for possession of the vessel an American citizen and member of the crew
was killed. McLeod acted as the agent of the British Government, and
although he was not directed specifically to do what he actually did, his
conduet was approved by the British Government and responsibility for
it assumed. Three years after the event (1840) McLeod was arrested
in Lewistown, New York, tried and fortunately acquitted. It would
seem that the courts of New York improperly took jurisdiction because
the ratification of McLeod's act by the British Government at once made
the controversy one between the United States and Great Britain to be
settled through diplomatic channels. Such was the opinion of Mr.
Webster, and as a consequence of this incident the habeas corpus act
was amended to include such a case. (Act of Congress, August 29, 1842,
5 Stats, at Large 539, c. 257, sec. 1; Sec. 753 U. S. Revised Statutes.)

The other incident referred to arose between Georgia and Tennessee.
Briefly stated, it appeared that certain copper companies established
their works in Tennessee within the neighborhood of the State of
Georgia and that the fumes generated in Tennessee passed into Georgia
causing considerable injury to property there situated. A bill for an
injunction was filed by Georgia in the Supreme Court of the United
States and the injunction was granted. The learned court was careful
to point out that the case was in reality one between two States and as
such was to be decided in accordance with international law, and that if
between two independent nations the case would be decided diplomatic-
ally because there is as yet no supreme court of nations to which appli-
cation might be made. As, however, the Supreme Court of the t'nited
States was created and exists for settling disputes between the States
of the Union, the court would take jurisdiction, but in so doing would
consider and decide the case in its larger aspect as governed by inter-
national as distinct from the provisions of municipal law.'

The Tia Juana incident is on all fours with this case, because Mexico. as well as Tennessee, was making a lawful use of its territory, but as the consequences extended across the border and injuriously affected persons and property within the neighboring jurisdiction, a nuisance was created which might properly be and actually was abated. The treatment of the case in the Supreme Court of the United States shows the undeveloped state of international law due to the lack of adequate machinery, and

i For the decision in full and for the reasoning by which the court assumed jurisdiction as well as for the judgment, see Judicial Decisions, p. 222.

[ocr errors]
[ocr errors]
« AnteriorContinuar »