« AnteriorContinuar »
domicil; hence, if it appears that there never was a bona fide intention to maintain the domicil there is a fatal vice in the original acquisition, and the fraud perpetrated by this means becomes ineffective. The acquisition of a new nationality, however, stands upon a different basis; it involves an act of sovereignty on the part of the state which can not be arbitrarily treated as a nullity by the state of origin, even should it appear that there was an element of fraud in the conditions under which it was obtained, always excepting the case where the conditions prescribed by the state of origin for the forfeiture or renunciation of original allegiance have not been complied with.
Apart from the obligation to perform military service it does not appear that the law of Italy imposes any special conditions on the renunciation of allegiance, and the supposition is that the acquisition of the new nationality is regular and valid on its face. Can the fact that it was acquired for the purpose of escaping the effects of Italian law vitiate the transaction ? Mr. Ottolenghi thinks not; nor does he favor the alternative theory whereby the naturalization is to be regarded as valid, but does not produce all its ordinary effects inasmuch as the intention of the parties was not to acquire a new nationality simpliciter, but merely for certain purposes. Intention has, in fact, no bearing on the results that flow from naturalization, nor would it be either logical or practicable to create an intermediate status in which different national laws would be applied to different acts of the same person.
An obvious difficulty in applying the idea of fraud to the proceeding in question is in the determination of the moment at which the fraud may be held to have been consummated, and on this we find a variety of opinions. If, as seems to be the case, it can not be definitely placed in the proceedings for naturalization, it is even less easy to find it in the action for divorce, or even in the application for confirmation or execution of the foreign judgment in Italy. Nor does the writer think that execution can properly be refused on the ground of “public policy;” every step in the transaction is in strict conformity with law, and the policy of the state can hardly in this instance be held to suffer from the relations of foreign citizens.
As a matter of fact, the fraud, if there is one, arises at no one instant of the proceeding, but exists essentially in the intention of the parties; and, as the author asks, “How shall we bring suit against an intention ? " Perhaps the answer might be that it is perfectly admissible where the fraud has been committed against a law. And here we have really an
indication of the gist of the difficulty, in the personification that is at the bottom of the whole conception.
The Hague convention dealt with certain aspects of the matter, and among others, formulated the rule that a fact which occurred before the change of citizenship shall not be invoked as a cause of divorce in the courts of the new country. Mr. Ottolenghi concludes from an examination of the rules as formulated and of the discussions and proposals that preceded them, that setting aside any question as to the validity of the change of nationality, the claim that recognition of the foreign judg. ment could be refused on the ground of “public order” and by reason of the immoral intention of the parties, even if admissible before the convention, has ceased to be tenable.
The conclusion, then, is that a divorce procured abroad by former citizens of Italy who have changed their nationality temporarily and with a view to returning to Italy when their purpose is accomplished, is perfectly legal, and must be recognized in the Italian courts in all its effects and implications. There is, however, undoubtedly a grievance in this state of affairs. The established policy of the national law is set at naught while the parties continue to enjoy all the privileges of life in their native country. What is the remedy? Mr. Ottolenghi suggests that it is to be found in the undoubted right of the state to refuse naturalization, and even to use the power of expulsion as against foreign subjects residing in Italy. The contempt manifested for Italian law can in this manner be penalized, if its direct results can not be avoided.
The Promise of American Life. By Herbert Croly. New York: The
Macmillan Company. 1909. pp. viii, 468. Mr. Croly at the outset of his work announces that the loyal American must be prepared to sacrifice the traditional American ways of realizing the national vision; and that the promise of American life in its noblest form is to be fulfilled “not by sanguine anticipations, not by a conservative imitation of past achievements, but by laborious, single-minded, clear-sighted, and fearless work." With fairness of mind the writer examines conditions that in the past have encouraged generous and irresponsible optimism. He utters a timely warning against the consequences of the popular expectation that "familiar benefits will continue to accumulate automatically.” He urges the necessity of wide-spread appreciation of obstacles to be overcome.
The author draws a vivid picture of the political ideas of the Federalists and the Republicans respectively, observing the fallacies that weakened the views of Hamilton, as well as of Jefferson. He carries his examinations further, and accurately reviews the political ideas dominating the Democrats and the Whigs. Throughout the historical sketch the writer has endeavored to point out the relation of American nationality to political parties, principles, and individuals. In his treatment of the life and services of Lincoln the author is most happy. He comments on the fact that Lincoln was the first responsible statesman who proclaimed that American nationality was a living principle rather than a legal bond.
In examining contemporaneous political and industrial problems the writer deals severely with the American lawyer, commenting upon the fact that American government is managed through the instrumentality of the Bar. The writer believes the qualifications of the lawyer for the task he undertakes are no longer substantially such as they once were. He declares: “ Not only has the average lawyer become a less representative citizen, but a strictly legal training has become a less desirable preparation for the candid consideration of contemporary political problems.” The writer further declares that the bulk of American legal opinion is opposed to reform which tends to political or economic reorganization ; and, further, that at a time when the basis of the American legal system needs a candid consideration, American lawvers “ have either opposed or contributed little to the essential work, and in adopting this course they have betrayed the interests of their more profitable clients – the large corporations themselves — whose one chance of perpetuation depends upon political and legal reconstruction.”
The chief object of Mr. Croly's book is to show that the fulfilment of the Promise of American Life depends upon the fulfilment of American nationality as he has defined that term. He makes an interesting comparison of the situation in England, Germany, and France, respectively, giving in each case a vivid picture of the relation between nationality and democracy. In view of the present political crisis in England, the comment of the author that “ the commoners on their side are proud of their lords and of the monarchy and grant them full confidence,” may be questioned, at least by the adherents of the Liberal Party.
To students of international law in the United States one of the most interesting portions of Mr. Croly's book is that relating to American Foreign Policy. The author denies that the Monroe Dostrine has “a
status in the accepted system of international law.” He adds that with the exception of Great Britain no other European country has accepted it, and that a number of them have expressly stated that it entails consequences against which they might sometime be obliged strenuously and forcibly to protest.” In the judgment of the reviewer it is a significant fact that at the present time European powers, before attempting, for whatever reason, coercive measures against delinquent American states, are disposed to consult the United States. It will be remembered that, for example, on December 11, 1901, the Imperial German Embassy filed with the Department of State a Promemoria with reference to proceedings about to be taken by Germany against Venezuela; and also that in 1908, the Government of the Netherlands consulted the United States with reference to measures to be undertaken against the same state. If civilized maritime states habitually conform to particular rules of conduct with respect to the American Continents, those rules will ultimately become incorporated into international law, even though their origin is due to the declarations of a single state, and their observance to its influence and naval power. Mr. Croly believes that there is a dangerously aggressive tendency of the Monroe Doctrine not due to the fact that it derives its standing from the effective military power of the United States, but because the policy which it fosters carries isolation to a degree that may provoke justifiable attempts to break it down.
With reference to an American international system Mr. Croly declares that the first object of the policy of the United States should be to place its relations with Canada on a better footing. To that end he suggests a closer political situation between the two countries — “some political recognition of the fact that the real interest of Canadian foreign affairs coincide with the interests of the United States rather than with the interests of Great Britain." A fanciful suggestion for a Canadian-American treaty is made, the essential idea of which deserves consideration. The writer is firmly convinced that the systematic effort to establish a peaceful American system is just as inevitable a consequence of the democratic national principle, as is the effort to make our domestic institutions contribute to the work of individual amelioration.
The general conclusions of the author are interesting and valuable, particularly with reference to the position and duty of the individual citizen in the process of the fulfilment of the Promise of American Life. He pleads for individual emancipation from the traditional American viewpoint. Finally, in order to attain the realization of American
nationality, the author emphasizes the overwhelming necessity of individual effort to accomplish individual emancipation by the doing of special work with ability, energy, disinterestedness and excellence. Whether or not the common citizen become emancipated, by the excellence and distinction of his work, and by contributing his part towards the fulfilment of the Promise of American Life, depends primarily, according to the author, upon the ability of his fellow-countrymen to offer him acceptable examples.
In the judgment of the reviewer Mr. Croly has written a book which deserves wide reading. If it is widely read it is believed that its influence will be profound. By the excellence of his own work, by the fairness of a mind which he has applied to the American problem of largest consequence, Mr. Croly has forged and tempered an instrument not only for his own individual benefit, but also quite as much for that of American society.
CHARLES CHENEY HYDE.
A Vindication of Warren Hastings. By G. W. Hastings. London:
Henry Frowde. 1909. pp. vi, 203.
The historical night that shrouds English activity in India during the 18th century was not cleared by James Mill, who unqualifiedly accepted the slanderous attacks of Francis and his partisans on Warren Hastings. Mill wrote the slanders into his history, where being found by Macaulay, they appeared in his brilliant essay, as facts. Many who have read that scintillating essay have gained from it their entire historical knowledge of Hastings, and it left a wide-spread impression that his domestic administration of India was marked by personal selfishness and corruption, and that his foreign policy was dictatorial, unscrupulous and conducted with an unnecessary harshness towards the native rulers. It has perhaps been difficult for the American mind to differentiate the coloring from the facts in regard to the rule of the East India Company in India under Hastings, for though viciously opposed by a majority of his Council, Francis, Clavering and Monson, he nevertheless dominated India during the critical epoch in which the American Colonies, after protesting against a vicious system of taxation, finally threw off the yoke of the mother country. It is easy to believe that the arbitrary and unwise actions of Royal Governors and other officials in the American Colonies were part and parcel of a policy by which the England of that day ruled in all of her outlying possessions. There is an undoubted basis for the