The Law of Nations
Great Britain and the Law of Nations. By H. A. Smith. (P. S. King. 16s.) TIIE aim of this book, as described on the cover, is " hitherto unatterimted:" It is " to present a documented exposition of the principlei governing the diplomatic action of Great Britain in matters which fall within the field of international law." The author Claims that he has " made an extensive search among materials which previously have been but little used by legal publicists." But he has omitted to note (or at least to make clear) that many of his documents have been used, and some of them quoted in extenso, by historians.
International Law—or rather the British practice of it (for that is our author's theme) stands in a peculiar relation to history and a relation not always understood by lawyers. The British Foreign Office has lent Mr. Smith its valued assistance, but few Foreign Offices are up to modern historical standards when they have to deal with anything beyond the last twenty years or so. They live too much in the present and cannot hope to do so. Unlike other Foreign Offices, we always lacked a special historical department in the past, and though one emerged in London as a result of the War it died with the death of its director, the late Sir James Headlam Morley. The many papers of the two Hertslets are good examples of erudition on nineteenth-century topics—very' creditable to officials, but not up to modern historical require- ments. And there are few cases in which lawyers do-not need historical aid in investigating the past. One- truth—not always obvious—is that great Foreign Ministers did not always know International Law well. So great a man as Castlereagh argued in the Commons that Napoleon could be legally exiled to St. Helena because he had broken the Treaty of Fontaine- bleau. This doctrine of penalty—as applied to the Sovereign of a State—must be very strange to a lawyer. Yet that is the way statesmen alter or meddle with international law. The puzzles can generally be resolved by historians, but are not usually obvious to lawyers.
Professor Smith has therefore tended rather to be a victim to the traps which a closer study of historians would have enabled him to avoid. Here are a few cases. In dealing with the recognition of States, e.g., pp. 122-6, he would have learned a good deal from Professor Webster about Colombia. In spite of quoting a good many despatches of Canning he either does not know, or has not made effective use of, two of the most important—theMemorandum on Recognition, December, 1824; and the notes on Chateaubriand's despatch of January 26th, 1824. These show the real mind of Canning in a way none of his quotations do. Again he does not seem to be entirely sound on the question of how far the appointment of Consuls implies the recognition of the State to whom they are appointed. This question—together with foreign opinions on the subject—has all been worked out—but we hear little of it. On the whole subject of recognizing Spanish America he would have learned much from the works of the American Professor W. S. Robertson, not to be found elsewhere.
Again, on the question of the States of Moldavia and Wallachia (1837-66) he quotes an opinion of Dodson (not Fogg), the Queen's advocate, which ends, " I am unable to form a more decided opinion " as to their status. He would have found plenty of decided opinions on the subject in Palmerston's minutes, and in various historical works—and the whole question was well worth. examining.
On the question of the recognition of two post-War States he is strangely meagre. As to Poland, we learn nothing excep.- that a vague letter was written by the Foreign Office in 1917 recognizing a Polish National Committee (page 235). As to Czechoslovakia, we learn more, but not enough. Our author seems to be unaware that the Reparation Commission- gave the date of Czechoslovakia's belligerency as October 28th, 1918, and consequently allowed it as the date from which she was justified in claiming Reparation. There are therefore strong arguments for making this the definite date of recognition of Czechoslovakian independence ; it was an opinion in which England concurred. Yet it is not the data which Professor Smith adopts or even discusses (page 237).
A last point, the doctrine of recognition of belligerents by Canning in Greece, 1828, is treated with interesting details, pages 286-290. But the really important defence of principle
by Canning is not in any of the documents he quotes, but in a controversy with Metternich of which he does not seem to be aware. It is one with which many historians both British and foreign—are acquainted.
To sum up,- the attempt is a bold one—and the author has freshness and originality. But there is no man who can thread the perilous mazes of nineteenth- and twentieth-century diplomacy by the aid of legal opinions and Foreign Office advice. International law and lawyers depend far more on history and historians at all times than they are generally aware. But a survey, in the sense of a " documented exposition," is of the past peculiarly dependent on such aid, and Professor Smith's interesting effort is marred by- an imperfect recognition of this fact. Without mobilizing all historical aids, research cannot really be " extensive," for historians are safer guides to the past than " Legal opinions."
HAROLD TEMPERLEY.
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