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Part II outlines the history of the scholastic doctrine on war from the Old Testament through the Christians of the first three centuries, St. Augustine and St. Thomas, the applications of and departures from the doctrine from the eleventh to the sixteenth century, down to the theologians of the last three centuries.
Parts I and II, which constitute about one half of the volume and occupy pages 1-285, ought to be translated into English, published and distributed widely. These two parts, besides the elucidation of the doctrine mentioned above, contain biographical sketches of all the important contributors to that doctrine. Among the Fathers of the Church and theologians will be found St. Augustine, St. Isidore of Seville, St. Thomas Aquinas, the Franciscans Monaldus and Ange Carletti, the Dominicans St. Antoninus, Sylvester, Cajetan, Victoria, Soto, Covarruvias, and Banès, and the Jesuits Bellarmine, Suarez, Vasquez and Lugo. Among the canonists are Gratian, St. Raymond of Peñafort, Innocent IV, Hostiensis (Henry of Segusio), Legnano, Martin of Lodi, Juan Lupo, Francisco Arias, Alfonso Guerreiro and Pierino Belli. Among the civilists and other writers are Bartolus, Bonet, Christine de Pisan, Ayala, Gentili, and a host of others. A service of no little importance is rendered by the indication of the location of the rare works in the Bibliothèque Nationale and the Library at Lyons.
Part III contains as pièces justificatives translations of relevant portions of Gratian's Decretum and St. Thomas's Summa, together with Victoria's De Jure Belli and De Indis and Suarez's De Bello in their entirety. An appendix outlines the doctrine of Suarez on international law. An analytical table is also appended.
The present volume, however, is not a slavish reproduction of the author's earlier works. Many parts have been entirely rewritten or extended. Such is the case with the lives of St. Thomas, Victoria, Suarez and Gratian. Minor corrections have been made in other lines also. There are, however, more typographical errors than one would expect to see. Inaccuracies are also frequent. But these may be attributed to war-time conditions in the printing industry and to the posthumous publication without the benefit
3 It might be worth while in passing to mention the fact that the works of Ayala, Gentili, Victoria and Legnano have appeared in the “Classics of International Law" mentioned above, while the works of Suarez and Belli are in preparation.
* On page 433 a line has been omitted without any indication; on page 432, section 418, ten lines have been omitted without any indication. Notes 4 and 5 are jumbled on page 436, as are the notes on pages 451-452. On page 322 it is stated that Victoria received the licentiate in 1522; Nys gives the date as March 24, 1521. Although an asterisk is supposed to be used to indicate notes of the author, frequent omissions of it occur. On page 442 the excerpt cited from St. Jerome is really from St. Gregory, and on page 472 the quotation from Ovid is really from Plautus. In section 20 on page 44 quotations from Suarez do not agree with the same passages in the back part of the book from which they purport to be taken and two lines of the author's own observations have been inserted in the quotation with nothing to indicate they are not part thereof.
of the author's careful scrutiny. At any rate they do not lessen the book's value to any appreciable extent.
A pleasing addition to the work is a preface by Professor Emile Chenon, of the Faculty of Law of Paris, in which he gives a detailed account of the author's life and works. Alfred Marie Vanderpol was born in 1854 and died in 1915. Although an engineer by profession, he had received his licentiate in law, and was an energetic leader in peace movements in France and Belgium. The Ligue Belge pour la Paix and the Union Internationale (founded in 1912, with headquarters at Louvain) were fostered, if not actually founded, by him. One of his friends, at his solicitation, supplied the funds necessary for the establishment at Louvain of a chair of international law according to Christian principles. Until his death he was closely identified with the Ligue des Catholiques Français pour la Paix, of which he was president and in whose bulletin he began his apostolate of the pen. The author's death shortly after the outbreak of the war, followed within a few years by the death of that indefatigable worker among the scholastic jurists, Ernest Nys, leaves a distinct gap among the cultivators of this field of international law on the continent.
HERBERT F. WRIGHT.
A Diplomat in Japan. By The Right Hon. Ernest Satow, G.C.M.G., LL.D.,
D.C.L. London: Seeley, Service and Co., 1921. With Illustrations and Plans, pp. 427.
From his retirement in Devon, Sir Ernest Satow, after more than fifty years of active diplomatic service, gives in this volume the record of his first years of foreign experience. In 1861 he went out to the Far East as student interpreter; in 1869 he went home on his first leave a Secretary of Legation. During these years events of great importance to the constitutional development of Japan had taken place and several crises in her nascent foreign relations had occurred.
The book, which is in large part based on the detailed personal journal of the author, is therefore a first hand record of a period of great significance in Japanese history by an observer who was often a participant in the events which are described. In spite of this fact the book is curiously impersonal and one realizes with difficulty that this modest young man is calmly writing of naval engagements, of murder and of assaults in the same grave style which he employs with reference to imperial ceremonies, the cost of living or Japanese theatres. On the whole the book has too much detail; the excellent glossary does not relieve the frequent use of technical Japanese terms and titles; and every page fairly bristles with names of people and places of no particular importance. There is not a grain of humor in the entire narrative and the winning of the V. C. receives less attention than a party where much sake is drunk.
Furthermore the author carefully avoids the use even of published diplomatic correspondence and rarely mentions any political facts of general importance which are not well known. His criticism of the French is occasional and aside from two brief references to the effects of Perry's earlier expedition one would suppose that the United States had had no part or interest in Far Eastern affairs during the decade within which this record lies. Because of such marked limitations and because there is practically no interpretation or discussion of the events described the reader is tempted to overlook the positive and valuable character of the book.
This lies first of all in the sincerity of the author, in his friendliness to Japan, and in his objective method. His book gives a remarkable background for the period and supplies the picture of a Japan that has gone forever, yet which existed so recently. Attacks on foreigners were frequent in the sixties and the temptation to pursue reprisals and gain permanent foothold and concessions on the islands was great. The central government was weak and power lay in the hands of the greater nobles. Indeed it is remarkable that the restoration of the authority of the Mikado was so easily accomplished. This event, of course, is the central fact in the book. With the fall of the Shogun the way was gradually cleared for modern imperial government. But the Mikado's power at the outset gained its first advantage from the fact that the British Legation refused to be drawn into negotiations or intrigue with the opposing clans. This policy contributed to the recognition by the Mikado's government of the foreign treaties which had been negotiated during the previous fifteen years. Thus the political revolution of 1868 did not involve a break in Japanese foreign relations. Rather foreign policy took new life from the reestablishment of the authority of the central government. But such developments lie beyond the limits of this book.
In general the main stages in the naval and diplomatic history of the period turn successively on the bombardment of Kagoshima by a British naval force to secure reparation for the murder of a British citizen by the followers of a daimio; on the reopening of the Straits of Shimonoseki to foreign shipping; on the opening of Osaka to foreigners; on the fall of the Shogunate and the new diplomatic relations with the Mikado. The Emperor was finally established at Yedo, better known as Tokio; and this substitution of modern Tokio for ancient Kioto as the capital was the outward sign of the change that had taken place. The book appropriately concludes with the description of an audience with the Mikado in 1869 at Yedo.
ALFRED L. P. DENNIS.
Le Droit Penal International et sa mise en æuvre en temps de paix et en temps
de guerre. Par Maurice Travers. Tome I, Principes.-Règles générales de compétence des lois répressives. Paris: Recueil Sirey, 1920, pp. 676.
This is the first volume of a monumental work upon International Criminal Law in which the distinguished author sets forth the general principles of his system and the larger rules governing the validity and vigor of positive criminal law. The plan which he adopts is to reject every fiction, everything not strictly in accord with reality, and to be ready, in case of necessity, to face new problems with new conceptions. We are prepared, therefore, for a work primarily of investigation wherein abstract theories are displaced by pragmatic and positive generalizations. The author proceeds upon the theory that law is a purely experimental science. The foundation of International Criminal Law is not to be found in international cooperation, but in the necessity which each state finds for the protection and defense in the largest sense of its own social interests. Each state acts essentially in its own interest, but as between states international cooperation is the essential means by which the security of each state is guaranteed. International cooperation is therefore the superstructure which rests upon the basis of state interests. M. Travers follows De Bar in making criminal law rest essentially upon social defense and not upon individual culpability. One dominating idea in this field of law should be that in each case every opportunity be given for the investigation of facts and for the consideration and refutation of the charge, yet nothing should be neglected to reduce to a minimum the chances by which the conflict of laws may result in allowing crime to go unpunished.
Proceeding from this basic conception of social defense, the author sets forth four fundamental axioms:
(1) Every repressive law determines all questions of qualification. It is for the law of each state alone to determine as to whether a given act runs counter to the essential conditions of its life and prosperity.
(2) The penal law by which the state proceeds for the protection of its essential social interests ought to cover every circumstance involved in the criminal transaction. Whatever the place of the crime, whatever the nationality of the accused, the protective law ought to be adequate to the evil which it aims and ought to prevent.
(3) The penal law of a state, being a law of social defense, ought not to cease to be valid simply because the penal law of another state likewise undertakes to operate; every penal law ought to play the full part provided for it.
(4) Every jurisdiction should apply exclusively its own penal law.
As to the first of these axioms, the fact that the penal law of one state does or does not consider a given act in the same way that another does, namely, as punishable, is without significance in determining if a wrong has been done to the essential interests which the other state believes should be protected. If these essential interests have been put in jeopardy, the social power which has the protection of them should be able to intervene repressively. As to the second, the result would be to permit, if need be, the application of repressive laws to acts done outside the territory subject to the jurisdiction which has decreed the laws. The third would recognize concurrently superposed legislative and jurisdictional authority, as illustrated by the Convention of 1910 for the repression of the white slave traffic. The fourth is illustrated by the terms of the same convention wherein each contracting state engages by its own legislation to create and define the crime and to provide penalties therefor. All of these fundamental axioms are assisted by and tend towards the general solidarity of international assistance. International assistance, mutual aid, and cooperation proceed from international accord and agreement. Municipal legislation should act as an auxiliary. Social safety demands international assistance, but international assistance depends upon municipal legislation and adjudication. The principal forms of cooperation are exchange of services of information, of surveillance, of preliminary examinations, and of the arrest and remanding of fugitives and prisoners.
As to an international court of penal justice having jurisdiction over war crimes, M. Travers expresses the following opinion: “We believe that in principle the prosecution of infractions of the customary or conventional rules of warfare ought to be reserved to the jurisdictions of the injured state or states."
The second part, arranged into divisions, sections, chapters, sub-sections, sub-chapters, and paragraphs, carries forward a minutely organized and classified consideration of positive international penal law, largely from the point of view of comparative legislation, with special reference always to the law of France. The jurisdiction set up by the legislation of each state does not proceed arbitrarily but is generally dominated by one or more of the following factors: the territoriality of the crime, active nationality, passive nationality, and the intrinsic nature of the crime (universality), as suggested by Meili. To these the author adds the factor based upon the presence of the person charged within the territorial jurisdiction of the state which has set forth the penal law (cf., the Cutting case). The present volume considers only the first (the application of the penal law on the basis of territoriality) and the fourth (on the basis of the nature of the offense). Consideration of the territoriality of the crime demands analysis of the idea of territory. While this discussion is in general satisfactory, the portion having to do with jurisdiction over the air is somewhat brief, and, considering the recent international aërial convention, already tending to be obsolete. Special mention should be made of the detailed exposition of the situations presented by the conception of the territoriality of the crime where there is military occupation or where the territory in question is uncivilized or unoccupied.