BOOK REVIEWS

Studies in History and Jurisprudence. By James Bryce, D. C. L. London: Henry Frowde. New York: Oxford University Press.

1901.

Mr. Bryce's collection of "Studies" is too well known to be made the subject of extended comment at this late date. But the relations of history especially of political history to legal development, which he has made peculiarly his own and in which his ripe learning and rare capacity for sound generalization are at their best, have such an intimate bearing on the origin and present condition of international law that we may be pardoned a belated reference to those portions of the work which deal with that subject. These are meager enough and might well be expanded into a volume, but, meager as they are, will repay thoughtful consideration.

Mr. Bryce confines his comments on the law of nations to two aspects of international relations one the modifications which the doctrine of sovereignty undergoes when applied to the relations of dependent or partially dependent states to the superior state; the other the influence which the doctrine of a natural law, underlying and shaping the development of actual legal relations, has exerted on the history of international law.

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The section dealing with sovereignty in international relations is, indeed, little more than a suggestion of the difficulties which the subject presents. As our author says, The varieties of relation in which one state may legally stand to another are endless and elude any broad classification," and the nature and degree of the sovereignty exercised by the one over the other complete or partial, perfect or imperfect must vary accordingly. The fundamental difficulty, that of basing any notion of sovereignty on a superior authority derived wholly from treaty, where the laws of the paramount state do not run to the inferior state, is barely more than glanced at. But surely here is the very root of the matter. If the treaty whereby a state agrees to transact its diplomatic business exclusively through the foreign office of another state is in the legal sense a surrender of its sovereignty, what shall be said of a treaty of alliance whereby two states bind themselves, on paper, to subject their military and naval establishments to one another's use

under certain circumstances? Can it be said strictissimi juris that such engagements result in anything more than rights (and rights of imperfect obligation at that) in personam? And should not the term " sovereignty" be in all cases confined to the status which a state has assumed, a status recognized by, and, in the sense of international law at least, enforceable against all other nations? These questions show how intricate the problem of sovereignty really is in international relations and how much more elucidation it requires than it receives in the work before us.

The indebtedness of our international law to the doctrine of a natural law, common to all mankind, which was adopted from the Roman jurists by Grotius, Gentilis, Paffendorf, and their successors, is a commonplace of the schools. Our author does not attempt to say anything new on the subject, but restates the conventional view clearly and, consistently with the scope of his paper, with adequate fullness. It is much to be desired, however, that Mr. Bryce or some other competent student of political history shall give us a work in which the influence of this noble humanitarian conception, which our modern analytical methods have done so much to discredit, shall be rigorously compared with the influence of maritime custom and of modern humanitarian feeling in the actual international law as practiced by the nations in their intercourse with one another. One can not help feeling that, as in the development of municipal law and of political institutions, the influence of general conceptions has been somewhat exaggerated and that we owe much to the course of events which we are fain to attribute to theories of law and government. The importance of a more scientific and rigorous treatment of the law of nations is emphasized by the importance which that law is likely to assume in the world-wide movement for international arbitration and the establishment of a high court of arbitral justice. These prefigure a development of international law in the next few decades of which its previous history and present state are but faint adumbrations.

GEORGE W. KIRCHWEY.

The Law Affecting Foreigners in Egypt. By James Harry Scott. Revised edition. Edinburgh: William Green and Sons. 1908. pp. xii, 390.

The appearance of this book is rendered timely by Lord Cromer's proposals for the reform of the system of justice and legislation in force

in reference to foreigners resident in Egypt. This complicated system, which prevents useful legislation and frequently works a denial of justice, is a product of the "capitulations." The work is not, as its title might indicate, a technical treatise on the system of justice administered by the mixed courts of Egypt. Nor does it deal in any detail with consular jurisdiction. The author's purpose is to give an account of the origin and development of the capitulations, to show their effect upon the legal status of the foreigner resident in Egypt, and to consider in what way the system may be modified. Abolition of the capitulations seems to be out of the question, since without the guaranty of the valuable privileges they contain it would be impossible for Europeans to live in security in Egypt.

About one-half of the book is devoted to the origin and history of the capitulations, chapters being given to such topics as the following: "The Trade Between East and West;""Privileges Granted to Foreign Merchants by the Christian States of the East;" "The Rise of Islam;" "The Trade of Egypt from the Twelfth to the Sixteenth Century;" "The Rights and Privileges Granted by the Early Egyptian Capitulations;" "The Ottoman Capitulations;" "The Tanzimat;" "Egypt and Turkey."

To the author "it is clear that capitulations were granted by the Ottoman Sultans before the fall of Constantinople, and that even after the capture of that city several states received capitulations before that granted to France." He therefore disagrees with the majority of French authors who cite the French capitulation of 1535 as the first Ottoman capitulation. The importance of this French capitulation is recognized, however, since it was the first essentially political one to be granted.

The Tanzimat, or reform in Turkey, is dealt with in a brief but clear chapter. The unsuitability of Mohammedan law to the requirements of modern civilization is brought out, and the author concludes that the chief fault in the Tanzimat was that the proposed reforms were introduced with too much haste. "Reforms, when they affect the social life of a people, should be introduced gradually, and should never be of such extensive character that it is entirely beyond the powers of the people to assimilate them." The Sultans, as well as the European powers, are blamed for the failure to achieve the desired result.

The chapter on "The Ottoman Laws of Protection and Nationality" treats of one of the most interesting problems which arose out of the

intervention by European states in the internal affairs of Turkey, during the period of the Tanzimat; namely, how to check the denationalization of her subjects. At first through the so-called right of "protection and later by conferring the title of subject on large numbers of Ottoman subjects who had never quitted Ottoman territories, the foreign states withdrew many Turkish subjects from the jurisdiction of the local authorities and placed them under the protection of the capitulations. The law of protection of 1863 and the Ottoman law of nationality of 1869 checked these abuses, but it is pointed out that since the passage of these laws Egypt has advanced in civilization where the Ottoman Empire has remained stationary, and that "the law which was sufficient for Turkey in 1869 is not sufficient for Egypt to-day."

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Chapter XI deals with the land laws of Turkey and Egypt and Chapter XII treats of the firmans and British occupation. As a result of the firmans, Egypt undoubtedly is still a province of the Ottoman Empire, but by these firmans and by custom she has acquired a degree of autonomy which approaches independence," as seen in her power to legislate as to internal matters and her power to make conventions. The author holds that the Egyptian Government has power to make conventions in reference to every question except the cession of territory or the making of peace or war. "In consequence, the Ottoman Government has no longer power to bind Egypt by treaties contracted between the Porte and foreign powers, although all existing treaties made between the Porte and foreign powers are binding on Egypt, except in so far as they have been expressly modified or abrogated. Thus, the Ottoman capitulations are binding on Egypt, and, in fact, this was expressly stipulated for in the convention of London of 1840."

British occupation is justified thus: "Reform in the administration was essential to the welfare of Egypt, but the Khedive not only required advice as to the nature of the reforms necessary, but also power to enforce these reforms. When a person is incapable of acting by himself the law appoints a guardian to give him advice and assist him in his acts; England, by the force of circumstances, had the office of guardian to Egypt forced upon her, and until the ward is capable of acting alone this relationship must continue."

The privileges accorded to foreigners by the capitulations embrace the right to reside and trade in Ottoman territory; religious freedom; inviolability of domicile; exemption from taxation, except customs dues; the right to apply the national law of succession; and immunity from

local jurisdiction and local laws. The first named are discussed only briefly. The right to enter Egyptian territory and trade there no longer rests on the capitulations, but has been accorded by customs conventions. Egyptian practice has gone further in its toleration of religious freedom than the capitulations themselves. Certain taxes have been consented to in international agreements by the powers, so that there is no tax of any importance which is not due just as much from foreigners as from Egyptian subjects. Moslem law itself recognizes the right to apply the national law of a deceased foreigner in regulating his succession.

Although the privilege of inviolability of domicile has been abused, it and immunity from taxation should be preserved until the rights they guarantee are fully safeguarded by some other means.

Certain obsolete provisions of the capitulations are pointed out, such as the clauses forbidding piracy, the arresting of English ships, etc.

The privileges of jurisdiction and legislation are the most important grants contained in the capitulations, and they are treated at length, both with reference to the periods before and after the institution of the mixed courts in Egypt.

Reference is made to article 4 of the capitulation of the United States of America of 1830 concerning consular jurisdiction in the case of a crime committed by an American citizen on an Ottoman subject, but no mention is made of the interesting controversy between our State Department and Turkey over the proper interpretation of that clause.

The modifications in the judicial system as a result of the creation of the Egyptian mixed tribunals in 1876 are shown, and the existing system of courts - mixed, native, and religious is fully explained. Consular courts are discussed only incidentally, since their regulation and organization depend upon the law of the state which the consul himself represents. However, the Ottoman order in council of 8th August, 1899, which regulates the British consular courts in Egypt, is given in full in the appendix.

The question of competence of the mixed courts depends on that of nationality. Some of the decisions which have resulted in the extension of jurisdiction beyond the original intention are briefly summarized. Of especial interest is the development of the theory of mixed interest, whereby the consular and native courts are ousted of jurisdiction, which is assumed by the mixed tribunals in all cases where some third party, who is a foreigner, may be indirectly interested. Thus, the mixed courts