The league of nations, the principle and the practice
(This is a reproduction of a book published before 1923. T...)
This is a reproduction of a book published before 1923. This book may have occasional imperfections such as missing or blurred pages, poor pictures, errant marks, etc. that were either part of the original artifact, or were introduced by the scanning process. We believe this work is culturally important, and despite the imperfections, have elected to bring it back into print as part of our continuing commitment to the preservation of printed works worldwide. We appreciate your understanding of the imperfections in the preservation process, and hope you enjoy this valuable book.
(Primarily this involved both a declaration of privilege a...)
Primarily this involved both a declaration of privilege and of a right, followed by an executory injunction. .T he real development of this form of relief by action is to be found in the Roman civil law of the Middle A ges, notably in I taly. A mong the several forms of protection against the assertion of imfoundea claims which grew up at that period, four received extended app Ucation: (1) the provocatio ex lege diffamari, which affords the broadest foundation for the modem negative declaratory action, and the provocatio ad agendum ex lege si contendat ;(2)the so-called querela nu Uitatis, upon which the modem civil-law actions declarmg the nullity of legal transactions is foimded; (3) the so-ca Ued liberationis condictio; and (4) the actio negatoria utilis. There were of course certain additional remedies to assiu eprotection against unfounded claims, but these were usually incidental to some coercive relief which was prayed. These are the protection of possession against the turbatio verbis through the assertion of false claims, and the flexible imploratio judicis for the determination of privilege or nonliability, i. e., immunity. This variety of measures for the protection of security would indicate that society during the Middle A ges was more sensitive than were the Romans to the social and incfividual danger of insecurity arising out of uncertainty of legal relations. This is traceable in two well-lmown legal phenomena of that period: the conceptions (a) that it was a personal mjury in the nature of slander to have an xmf ounded action broujght against one; and (6) that society had an interest in the protection oi the status quo. While an action is a method of restoring a disturbed legal equilibrium and therefore an aid to ordered commxmity life, it nevertheless constitutes a disturbance of the peace of the person threatened with it. For him it is a
(Typographical errors above are due to OCR software and don't occur in the book.)
Guide to the Law and Legal Literature of Argentina, Brazil and Chile (Classic Reprint)
(This is the fourth in the series of guides to foreign law...)
This is the fourth in the series of guides to foreign law published by theL ibrary of Congress. I ts immediate predecessor was the Guide to the law and legal literature of Spain, in which country the foundations were developed, if not laid, for the institutions of private law of theS panish American republics. The great source book of Brazilian law, the Codigo Philippine), was promulgated in 1603 during the time when the governments of Spain and Portugal were united under one sovereign. The common origin of Latin American private law in the Roman law has been especially manifested in Brazil, where until January i, 1916, no civil code had been enacted. On that date Brazil joined her sister republics by promulgating what is admitted to be the most scientific and modern civil code of Latin A merica. While A rgentina, Brazil, and Chile in common with the other republics of Latin America have turned toE uropean (particularly French andS panish) models for their institutions of private law, the United States has been the prototype for their constitutions and much of their constitutional law. I ndeed, the decisions of the United States Supreme Court and the contributions of our writers on constitutional law are familiar to South American courts and constitutional lawyers. To the political scientist, it is interesting to observe the result of the implantation of exotic institutions in new soil. A rgentina, Brazil, and Chile have, besides a common original source of their law, this feature in common: Each has produced one remarkable codifier, Dalmacio Velez Sarsfield in A rgentina, Augusto Teixeira de Freitas in Brazil, and Andres Bello inC hile, who have erected to themselves permanent legal monuments. The influence of their work has spread from these countries to the other republics of Latin A merica.
(Typographical errors above are due to OCR software and don't occur in the book.)
About the Publisher
Forgo
Edwin Montefiore Borchard was an American lawyer, educator, and writer. He was professor of international law at Yale University Law School, a position that he held from 1917 until his retirement in 1950.
Background
Edwin Borchard was born on October 17, 1884, in New York City, New York, United States, the son of Michaelis and Malwina Schachne Borchard. His father was a prosperous Manhattan merchant, and Borchard was brought up in a cultured environment.
Education
Edwin Borchard attended the City College of New York from 1898 to 1902 and he received the LL. B. from New York Law School in 1905, the B. A. from Columbia College in 1908, and the Ph. D. from Columbia University in 1913.
Career
Borchard's rise in his chosen profession - international law - was almost meteoric. In 1910 he advised the American delegation during the North Atlantic Coast Fisheries Arbitration at The Hague. From 1911 to 1916 he was law librarian of Congress, interrupting this tenure in 1913 and 1914 to serve as assistant solicitor for the Department of State. In 1916 and 1917 he was an attorney for the National City Bank of New York. In 1917 Borchard became professor of law at Yale University Law School, a position that he held until his retirement in 1950. From 1923 to 1925 he acted as chief counsel for Peru in the Tacna-Arica dispute and was appointed by President Calvin Coolidge to serve on the Central American Arbitration Tribunal. In 1925 he held the first postwar American lectureship at the University of Berlin. He served on the Pan-American Committee of Experts for the Codification of International Law and, in 1930, was technical adviser to the American delegation at The Hague Codification Conference.
Borchard was a prolific writer, a frequent congressional witness, and a close adviser to Hiram W. Johnson and other senators. He served on the board of editors of the American Journal of International Law from 1924 until his death. An activist as well as a scholar, Borchard contributed much to American civil justice. In addition to writing the influential pamphlet The Declaratory Judgment (1918), he acted as a one-man lobbyist. Courts, he maintained, should be allowed to remove legal uncertainty before actual loss or injury has occurred.
Borchard also promoted legislation making the government liable to suit in case of federal negligence. Borchard was an authority on diplomatic protection for alien citizens and property. Realizing that large powers could easily take advantage of small ones, he sought obligatory submission of foreign claims to international tribunals. He strongly opposed Allied confiscation of German property after World War I; believing that such practice violated longstanding international rights, he personally defended German interests in several arbitration cases. Yet, despite his own belief in world jurisprudence, Borchard often warned against over-reliance upon international courts and law. Nations, he said, would never submit questions of vital interest to any international authority. The underlying roots of national interest were economic, not legal. Industrial nations fought in order to sustain a prosperity based upon foreign markets, raw materials, and investment of surplus capital. To resolve such conflicts, Borchard in 1930 suggested tariff reduction, international coordination of the world's raw materials, regulation of competition, and organs of "conciliation and appeasement" empowered to remove grievances.
A disciple of John Bassett Moore, Borchard considered international law a science. During the period from 1919 to 1939, he became a prominent spokesman for traditional neutrality. Borchard maintained that before World War I, carefully defined international laws protected nations from "purposeless" involvement, permitted commercial prosperity, limited the scope of the fighting, and allowed neutral mediation. After the war, however, efforts to freeze the status quo and check "aggressors" guaranteed endless conflict for all. Borchard claimed that the League of Nations had degenerated into an armed alliance, while the Kellogg Pact really involved "hearty support of war. " Rigid Western opposition to Japan in Manchuria, Italy in Ethiopia, and Germany on the European continent, he said, was comparable to "sitting on a safety valve. " During the 1930's he reluctantly favored a mandatory ban on arms and munitions but warned that presidential discretion, cash-and-carry, and discriminatory embargoes could involve the United States in conflict. Unlike the isolationists, he believed that international law - not domestic legislation - could preserve neutrality. In addition, he claimed that efforts to prohibit all trade with belligerents would cause distress at home and meet with hostility overseas. In 1937 he wrote (with the aid of the attorney William Potter Lage) a noninterventionist manifesto, Neutrality for the United States ( 1940). Here Borchard combined traditional arguments with accusations that President Woodrow Wilson and Secretary of State Robert Lansing, by refusing to press for neutral rights, had made war with Germany inevitable.
A supporter of the America First Committee, Borchard continued to oppose United States diplomacy during World War II and the cold war. He found the United Nations an instrument for Great Power domination, the Nuremberg trials and the Potsdam Agreement acts of vengeance, and the Truman Doctrine a commitment to unlimited intervention.
In addition to writing a number of books, Borchard was the author of more than 200 articles and book reviews, many of which appeared in the American Journal of International Law. He contributed frequently to the annual proceedings of the American Society of International Law and the Institute of International Relations and to various academic and law journals. He also wrote for such popular periodicals as the Nation, New Republic, American Mercury, Current History, and Saturday Review of Literature. He was as well American editor and translator of Fiore's International Law Codified (1917), served as editor, with Joseph F. Chamberlain and Stephen Duggan, of The Collected Papers of John Bassett Moore (2 vols. , 1944), and compiled Coastal Waters (1910). Although the United States had abandoned Borchard's traditional neutrality years before his death in Hamden, Connecticut, at the age of sixty-six, his belief in anti-intervention found increasing sympathy in a later generation.