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American citizenship. Our naturalization treaty of 1868 with the North German Union furnishes a precedent for the two year presumption clause, but this has not caught the notice of the author. In fact, in section 50, he makes a statement directly at variance with the facts under that treaty. Reference is made, section 45, note, to the Bancroft treaty but its practical bearing upon German evasion of military service is not touched upon.
In the chapter of summaries which is valuable and interesting particularly as showing some peculiar features of naturalization general in the Latin-American states, there is no tabulation of the length of residence requisite for naturalization, which is a real lack. Is the five year period, as in Cuba, really coming into general vogue, or at least is there a tendency thereto? The author should have told us. In these comparatively simple respects, a good treatment of a subject admittedly complex might have been made fuller and more recent and perhaps better.
T. S. WOOLSEY.
Les Lois De La Guerre et Les Deux Conférences De La Haye (1899–
1907). By Paul Boidin. Paris: A. Pedone. 1908. pp. 282.
Lieutenant Boidin is a doctor in law and an instructor in the Military School of Rambouillet. His work is another instance of the relatively large interest taken by French military men in international law or at least that part of the subject dealing with the law of war. And this interest is one of the hopeful signs of the times. In a branch of the law where so much must be left to the judgment of those who are to observe it, as is the case with the law of war and especially that part of it dealing with war on land, knowledge of its precepts on the part of those whose actions are controlled by it is indispensable to its efficacy. It is true that the third article of the convention with regard to the laws and customs of war on land drawn up at the Second Peace Conference provides that a belligerent party which violates the provisions of the annexed regulations shall, if the case demands, be liable to pay compensation, and it would seem that this provision looks to some at least quasi-judicial enforcement of the laws of war on land, but at best it would seem to look to some international commission of inquest or arbitration, the practical working of which in cases of this kind is for the future to determine. Up to the present at least the enforcement of the laws of war on land has lain with the military authorities of the respective belligerents, subject to such control by the political authorities in notable cases as considerations of policy and humanity, the recriminations of the adversary and public opinion have demanded. There have been no prize courts for the judiciary to keep the army within the law such as enable the judiciary to exercise a very considerable check on violations of the law at sea. It is military men above all others therefore, that should be conversant with the laws of war and the publication of a work of so high a character as this by Lieutenant Boidin, himself a doctor in law, is a matter of encouragement especially as it is not an isolated case but is rather an instance of a very general interest taken by French military men in recent years. French jurists lead the world to-day in this branch of the law and it is but fitting that French soldiers should lead in making it a living thing to those on whom its execution primarily depends. One point that the author urges with great force is that the study of war and its laws should go hand in hand, that on the one hand the jurists who treat of the laws of war should know something of its technique and that on the other hand military schools should not leave such a large proportion of the instruction in the laws of war to the university faculties.
It is equally important, however, that with a knowledge of the law of war on the part of military men should go a sympathetic understanding of its precepts. Many of the rules drawn up at the Peace Conferences would amount to little in the hands of hostile commanders. Take Regulation XXIII(g), for instance, in which it is forbidden to destroy or seize the enemy's property unless such destruction or seizure be imperatively demanded by the necessities of the war. In the hands of a hostile commander the necessities of war might be given such a broad interpretation as to render the regulation little more than so much waste paper. In the hands of a commander imbued with loyalty to the regulations, however, such a regulation might make him think twice before adopting some measure of devastation suggested by military necessities but possibly to be avoided on second thought. Accordingly it is pleasing to those who have the future of the Hague Regulations at heart that a military man with the undoubted insight of Lieutenant Boidin should express his warm though not uncritical approval of them. It is symptomatic of the way that responsible military critics will regard them and bodes well for their future. And it seems clear that such approval is deserved, as military men had such a large part in their formulation.
The work is divided into two parts. In the first sixty-eight pages the author considers the principles underlying the law of war, the proper scope of the work of bodies like the Peace Conferences and the proper field of application of the rules laid down by them. The remainder of the work is a running commentary on the work done at The Hague. It shows a clear grasp of the situations which the regulations are intended to meet and, although inclined to be doctrinaire in ascribing only interested motives to the various delegations, is unusually fair and openminded on most points. The author repudiates the chance remark of Rousseau which has been made the creed of so many jurists as a fundamental rule of the law of war and insists instead on a thorough application of that other rule that useless injury shall be avoided. The work is a clear, interesting criticism of the work done at The Hague by a fairminded military man with knowledge and appreciation of the law involved.
The Rhodian Sea-Law, edited from the manuscripts by Walter Ashburner,
M. A. Oxford: The Clarendon Press. 1909. (pp. ccxciii, 132.)
This scholarly book is at once an inspiration and a despair to the student of the mediæval maritime codes, an inspiration to apply to other bodies of similar law the same critical methods which have been directed to the early laws of Rhodes, and despair over the many problems which Mr. Ashburner raises as to the codes which are later in date. Until the same painstaking and laborious effort which has been expended upon the Rhodian Laws has been applied to the Consolato del Mare, the Rooles d'Oléron and the rest, the development of mediæval maritime law will continue to be an unsolved question. This is not to underestimate the monumental labors of Pardessus, whose Collection des Lois Maritimes (1828-45) is the usual but not always accessible source of information upon the subject. The writer of the present book shows that Pardessus's text of the Rhodian Laws is corrupt and inaccurate. There is reason to believe that the latter's version of the Consolato (followed by Twiss in his Black Book of the Admiralty) might be improved by the publication of a printed edition, earlier than that accessible to Pardessus, with a proper collation of the existing manuscripts.
The genuineness of the Rhodian Sea-Laws has been a subject of long controversy. First printed by Simon Schard in 1561 they were denounced as spurious by Bynkershoek and Heineccius. Until Pardessus printed his first volume there was no edition which could be called critical. Since then they have been edited by Heimbach, Zacharia, and Ferrini and Mercati in connection with the Byzantine Basilica. Notwithstanding the labors of these eminent modern scholars, Mr. Asliburner seems to work in hitherto unploughed soil. His first task was to present an adequate text. To this end he has carefully collated more than twenty-five manuscripts, ranging in date from the tenth to the sixteenth centuries. Though he has made bold to adopt a “frank eclecticism” in the use of these manuscripts, his greatest dependence has been upon the “ oldest as possibly the best MS. of the Sea Law.”
The present work is in three parts: (1) an introduction of nearly three hundred pages; (2) the Greek text with a critical apparatus which may well excite surprise with its appalling wealth of variant readings; and, (3) an English translation and commentary. It would be invidious to attempt a comparison of the relative merits of the three parts. As an instance of the author's breadth of reading in the preparation of his commentary, he cites references to Weld's Travels in North America and to JacMaster's Ilistory to illustrate the prevalence of “gouging-matches among the Mediterranean sailors (p. 85). It is in the introduction, however, that the author attempts the solution of the many problems of the sea-law. Among his conclusions are that while the Rhodian Law was originally compiled not later than A. D. 800," and probably a good deal earlier” (p. liii), perhaps two centuries, it was redacted for incorporation in the Basilica (circa 890), and that notwithstanding the almost myriad variants of the manuscripts, "the sea-law, so far as its legal effects were concerned, remained substantially the same from the beginning of its career to the end,” for it represented the maritime law of some parts of the Mediterranean down to the fifteenth century (p. xlix). The prologue, or “auctoritas,” in two forms is thrown out as a spurious “rigmarole,” leaving the work as a probably private compilation. The sources of the sea-law he investigates by a comparison with other legal monuments, especially the Corpus Juris and the Ecloga. The similarities with the former are frequent; with the latter he denies Zacharia’s contention that there was any connection. “The sea-law was put together from materials of very different epochs and characters. Some of it was possibly from treatises in the nature of a 'Complete Merchant,' guides to a gentleman engaging in business. Other parts may have come from enactments of Byzantine Cæsars; but the mass of it must be derived from local customs (p. cxiii)."
Having so placed the Rhodian Law in relation to its history and sources, the author devotes much space to a comparison of it with the other bodies of maritime law, using for the purpose not only the more
general statements of the Tables of Amalfi and of the Consolato, but also the various medieval city statutes and ordinances, as of Venice, Pisa, and Barcelona. This comparison is rendered the more striking and of greater historical value by a topical discussion of the development of several maritime legal doctrines, such as the contract for transportation, maritime loans, average, jettison and contribution. One of the most interesting of these is the demonstration of the aleatory character of maritime loans, and of the influence upon them of the mediæval doctrines of interest. Noteworthy also is his disagreement with Goldschmidt, who bases the principle of contribution not upon natural equity but upon an agreement growing out of the risk, in “
agermanament.” According to the author the consent of those engaged in the risk was only for the purpose of ascertaining if a case for jettison had arisen. To prove his contention he cites many references to maritime ordinances in the North as well as in the Mediterranean, while Goldschmidt relies largely upon the Consolato, never in Mr. Ashburner's mind a very good authority. Indeed one is struck throughout the book with the epithets directed against the Catalan compilation. It is “verbose ” (p. exx), containing “futile reasons” (p. cxxi), and has an “air of unreality about it” (p. cxxi), while its language is “confused” (p. ccxciii) and “ diffuse” (p. cclxxxvii). It is to be hoped that sometime a scholar of Mr. Ashburner's ability and zeal may attack the equally difficult problem of the Consolato, for so many years venerated as an authority. It may be that the shortcomings of the Consolato are due rather to its editors than to the work itself.
Mr. Ashburner has put all students of the history of maritime law under heavy obligations. It might be objected that the style of the work is rather forbidding. But the author did not set out to make a very readable book. He has successfully dared not to be popular. The result is that the work will probably not have to be done again by some succeeding investigator.
JESSE S. REEVES.
Der kranke Krieg. By Alfred H. Fried. Leipzig: Alfred Kröner,
Verlag, 1909. pp. xii, 176. 1 mark.
“ The Sick War" is the verbatim translation of the title of a new book recently published at Leipzig from the pen of Mr. Alfred H. Fried, the well known author of pacifist literature and editor of the “ Friedenswarte.” To the unbiased mind the book is all its title