Hervey, John G.

English

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Judicial Interpretation of International Law in the United States, by Charles Pergler

Indiana University Bloomington Maurer School of Law

Indiana Law JournalVolume 6 | Issue 2 Article 1111-1930Judicial Interpretation of International Law in theUnited States, by Charles PerglerJohn G. HerveyTemple University School of LawFollow this and additional works at: http://www.repository.law.indiana.edu/iljPart of the Comparative and Foreign Law Commons, and the International Law CommonsThis Book Review is brought to you for free and open access by the LawSchool Journals at Digital Repository @ Maurer Law. It has been acceptedfor inclusion in Indiana Law Journal by an authorized administrator ofDigital Repository @ Maurer Law. For more information, please contactwattn@indiana.edu.Recommended CitationHervey, John G. (1930) "Judicial Interpretation of International Law in the United States, by Charles Pergler," Indiana Law Journal:Vol. 6: Iss. 2, Article 11.Available at: http://www.repository.law.indiana.edu/ilj/vol6/iss2/11BOOK REVIEWSJudicial Interpretation of International Law in the UnitedStates. By Charles Pergler. The MacMillan Company, NewYork. 1928. Pp. x-222.In this little volume of two hundred pages Dr. Pergler hastaken a short conventional outline of International Law andfilled in the respective sections with appropriate excerpts andsummaries which he has taken from nearly five hundred lead-ing Supreme Court decisions. The work contains, in additionto the six chapters, a table of cases cited and an index.The author turns first to the acceptance and enforcement ofInternational Law in the United States. Lawyers will imme-diately recall that Blackstone, in his Commentaries, declares thatin England the Law of Nations is "adopted in its full extent bythe common law and is held to be a part of the law of the land."Since this common law was brought to America by the Englishsettlers it early became a part of our law and Mr. Justice Wilsonwas able to declare in Ware v. Hylton that "when the UnitedStates declared their independence, they were bound to receivethe Law of Nations in its modern state of purity and refine-ment." With the adoption of the constitution it became a partof the "law of the land" binding the States equally with theNation.Next follows a sixty page consideration of Independence andSovereignty. These are generally treated by the writers as at-tributes of Statehood, or else regarded as "so-called fundamentalrights of states." However, in addition to these, the writertreats of the United States as a state in International Law, therecognition of states and governments and sovereignty over ter-ritory, the nature and effect of belligerency, the kinds of govern-ments, the continuing personality of states and the effects andresults of the acquisition and loss of territory. This constitutesa rather meaty order and the reviewer feels that greater claritywould have been achieved if the material had been divided andmade the basis of two chapters, or possibly three, rather thanone.A third chapter is devoted to the Jurisdiction of States. Itcovers the positive jurisdiction of states over their land andwater boundaries and discusses the exemption from territorialjurisdiction, in addition to the problem of extradition. Thetreatment is deficient in that scant attention is accorded to juris-diction over the marginal seas whereas this is proving to be ofvast importance in contemporary litigation. Too, the authormakes no mention of jurisdiction over the air space, althougha pronouncement in point issued from the Supreme Court asearly as 1907, State of Georgia v. Tennessee Copper Co., 206BOOK REVIEWSU. S. 230, whereas the political department of our governmentdid not adopt the view advanced in this opinion until the out-break of the World War. The refusal of the American Senateto ratify the International Flying Convention of 1919, or tosponsor aerial navigation treaties with other countries, rendersthis phase of jurisdiction of special importance at the presenttime. Too, it is to be noted that foreign government sponsoredcartels operating in the United States have brought into greaterprominence the difficulties presented in Berrizi Brothers v. S. S.Pesaro, 271 U. S. 562. In this regard see United States v.Detsches Kalysyndikat Gesellsehaft, 31 Fed. (2) 199.The author next turns his attention to Citizenship and Alien-age. The reviewer regards this as the most valuable section ofthe book. Even here the author devotes eight pages to the tradi-tional doctrines of jus sanguinis and jus soli, although, so far asthe United States is concerned, this is "wholly a matter of mu-nicipal legislation" and is answered by the Fourteenth Amend-ment. Still it may be laid down as a principle of InternationalLaw that every state may determine for itself what classes ofpersons are entitled to its citizenship. Also, once the state hasconferred citizenship it is possessed with full power to stipulatethe conditions subject to which it will release the bond of allegi-ance. Dean Pergler could easily have discussed such provisionsof the Act of 1907, in connection with the Cable Act, p. 145. Asregards aliens, their status is determined by the municipal lawsof the country of residence. Thus the state may prevent alto-gether the entrance of foreigners, or may impose limited reason-able disabilities as a condition requisite to admission. If thestate may go this far, then it may also expel them and Interna-tional Law will raise no bar in such procedure.A fifth chapter deals with Treaties, a third of which is givenover to the treaty-making power in the United States. Here, inthe opinion of the reviewer, the most important problem is theability of Congress to nullify a self-executing treaty which thePresident has negotiated upon a subject not within its legislativecompetency, rather than "declaring any treaty invalid as havingtransgressed even the broad powers granted by the Constitu-tion," as Mr. Pergler would have it. The "good sense," to usethe phrase of the author, of the American Congressmen may notprevent our courts from facing squarely this issue in future liti-gation. It will be recalled that such a situation existed duringPresident Wilson's administration but the issue did not comebefore the courts.The remainder of this chapter is devoted to the enforcement,interpretation and termination of treaties. No attention is givento sanctions: treatment is confined to the measures adopted bythe respective governments in putting the treaty into operation.Since treaties are in the nature of contracts, they are "governedby those canons of construction and interpretation applicable toagreements in writing between individuals, the primary object129.INDIANA LAW JOURNALbeing to give effect to the intent of the contracting parties."They may be terminated in various ways. These are enumeratedand major attention given to the clausula rebus sic stantibus bywhich a treaty may be considered as abrogated when materialcircumstances on which it rests change, and to the effect of waron treaties. Our courts refuse to hold that treaties are extin-guished, ipso facto, by war. The general formula of the oldwriters no longer suffices: the courts regard each treaty as en-titled to special treatment on its own merits.In a final chapter, entitled Remedial Measures Falling Shortof War, the author devotes two pages to arbitration, one page tonon-intercourse and embargo, and three pages to retaliation andreprisals. These points have been dwelt upon in only a few ofthe cases, hence the treatment is necessarily brief.In reading the volume, one feels that it would have been betterfor the author to have included more of the case facts. Notonly would it have added interest and clarity, but it would havegiven the reader a better understanding of the law. This seemsall the more necessary since the courts regard the law of a caseas applicable only to the particular facts under litigation.The volume merits the attention of all students of the socialsciences who desire a cursory legal summary of the principlesgoverning the relations of states in time of peace. It will be oflittle use to practicing lawyers who have access to Corpus Jurisor R. C. L. The volume is a disappointment in view of DeanPergler's training and experience.JOHN G. HEiVEY.Associate Dean,Temple University Law School.The Law of Torts. By Thomas M. Cooley. Revised Editionby Archibald H. Throckmorton. Callaghan & Company, 1930.This is a one volume revised edition of Cooley's famous"Treatise on Torts." The book appears to be a much neededpiece of work reasonably well done. As the editor himself sug-gests it is largely a re-writing of the original text. In the twentysome-odd years since the last edition great changes have takenplace in this phase of the law and it would seem that nothingshort of a complete re-statement of the original text would suf-fice. This has been undertaken by the editor with ability anddiligence. The book is completely modern and the material ishandled with skill and effectiveness. Advantage has been takenof the accumulation of scholarly investigations upon many prob-lems of tort law during the last dozen years and frequent cita-tions to these and to the periodical literature in general are tobe found in the notes. The chapter on "Proximate Cause" ap-propriately inserted in the fore part of the book is a good illus-tration. The treatment of this tricky problem is about all thatcould be hoped for in an elementary book for students. Since

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Judicial Interpretation of International Law in the United States, by Charles Pergler

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