tive international law, which consists in certain accidental, variable and secondary rights and duties established by international custom or by treaties and conventions. Now it often happens that, owing to the selfishness and evil passions of states, the rules of positive international law are in conflict with the principles of theoretical international law. Positive international law is accordingly in a state of permanent evolution during the course of which theoretical international law furnishes the criterion or standard by which the rules of positive law are to be judged, and at the same time offers the means whereby gaps in the positive law may be filled up and improvements in it be prepared. The author thus ranges himself among the followers of Grotius, who constitute what he calls the Eclectic school of international law. This school offers a compromise between the extreme views of the Positivist school, on the one hand, and the school of Natural Law, on the other. It accepts the facts of international life as embodied in usage and treaties and subjects them to the test of analysis and criticism according to the principles of theoretical international law.

In contrast with the method of determining the basis of international law adopted by Bonfils, Despagnet looks first to the facts and then to the theories underlying them. He recognizes that a law between states is a necessary result of the relations which states by their very nature are inevitably led to maintain with one another; but instead of deducing certain abstract principles from that relationship, he turns first to the actual rules governing international relations and finds in the fact of their existence the implied consent of nations to abide by those rules. It is this consent, this voluntary adherence of states to the rules under which they live which constitutes the foundation of international law and gives to it a positive character. Despagnet thus formally rejects the system of Grotius, Wolff and Vattel, which he denominates as an a priori and theoretical system built up without attention being first given to the rules actually observed. Theoretical international law being, he says, "historically subsequent to positive international law, it must be regarded not as a purely rational and a priori conception, but as the criterion of positive law already in existence." "The true method," he continues, "is to observe the facts, that is to say, interOp. cit. 48-49. • Ibid, 51.

national relations and the manner in which they have been regulated in the course of their historical evolution, which leads us to a knowledge of positive international law; then, by a process of scientific synthesis, to select the relations which appear to be sufficiently permanent and universal, so as to arrive at the formulation of laws expressing those relations." So far Despagnet would seem to belong rather to the Positivist than to the Grotian school. But there is a further step to be taken. Positive international law must be tested by a standard embodying the principles of theoretical international law. "Finally," says Despagnet, "and this constitutes the art of the international jurist, by the criticism of the results obtained in the positive law already in force and by the union of the general laws of international relations we may come to create particular institutions or rules of a character tending to produce better results from the point of view of the interests of states."

It will be seen, therefore, that both Bonfils and Despagnet, in spite of the difference in their points of approach, recognize clearly the distinction between the rules actually in force between nations and the rules which should be in force between nations; between the law that is and the higher law to which it is desirable that the practice of nations should conform. Just what are the precepts of that law, neither has undertaken to determine. Nor is the determination possible except in a very general way. Bonfils, arguing a priori, refers us to the principles of the law of nature, and while it may be difficult to find an agreement as to the proper application of those principles, there are at least certain general conceptions of international right and wrong upon which all men are agreed. Despagnet, arguing a posteriori, proposes that an abstraction be made from the historical facts of international life, the result of which will be to furnish us with principles of international conduct. In either case we are brought back to a standard of international morality consisting of those abstract rules of justice which have been consistently proclaimed in principle by the consensus of the civilized world.

Both Bonfils and Despagnet agree in holding that international law is true law. Bonfils states clearly and forcibly the three objections brought by writers of the school of Heffter, Bentham and Austin: "Law, it has 7 Op. cit. 51.

been said, supposes an organized supreme power which gives it life and which implies the coexistence of three authorities: A legislator, whose duty it is to formulate rules of law; a judge, whose duty it is to apply those rules to various individual cases; a police body, whose duty it is to execute the decisions rendered. Now, it is further asserted, no organization of this or of a similar kind exists between independent and sovereign states." In brief, there is "no code, no court, no police." 8

In answer to the first of these objections Bonfils points out the distinction which must be made between the terms droit and loi, between what may be described in English as the unwritten or customary law and the statute law. It is undeniable that if law be limited to statute law, the so-called international law is not true law. But this would be to overlook the part which custom has played in the formation of written law; for custom is not only the chief source of national codes, but still constitutes in many countries a part of municipal law. In like manner Despagnet remarks that municipal law during many centuries of its early existence was generally customary; and he points out that the constitutional law of many countries, which is thoroughly positive, often consists merely of ancient traditions.

In answer to the second objection, that there is no court competent to give decisions in matters relating to international law, Bonfils shows that law is anterior to judicial decision, which presupposes it, and hence can not be an essential condition of it. Moreover, in many cases the rules of international law receive incidental application and interpretation in the decisions of municipal tribunals and particularly in the decisions of prize courts. Similarly, Despagnet points out that the absence of a judiciary merely proves that international law is in a state of imperfection, that it is passing through an early stage of its evolution, a stage through which municipal law itself passed without there being any doubt as to its positive character.

In answer to the third objection, that there is no organized public power to enforce respect for international law, Bonfils lays stress upon the moral sanction which brings its pressure to bear against violations of international law. "The attitude," he says, "of other states, the good offices of friendly powers, the official declarations of the diplomatic * Op. cit. 10, 11.

body, the threats of powerful states, the verdict of public opinion pronounce upon the justice or injustice of claims made or acts performed." 9 In support of this Bonfils cites the coalitions of neutral states in 1780 and 1800, which forced Great Britain to withdraw her excessive claims, and the conduct of Germany in the Schnaebelé incident of 1887, as instances of the pressure of moral sanctions, the one of fear, the other of respect for public opinion; but it must be noted that Bonfils expressly repudiates the idea of war as a juridical sanction of international law. On the same point Despagnet shows that the sanction of public authority did not exist in the early stages of municipal law, and that while the sanction of international law may not be definite and organized, it is to be found "in the ordinary consequences of acts done in violation of the rules ** of international law." These consequences may not appear immediately, but they are none the less certain to follow. "If we regard," he says, "the current of events taken as a whole and by long periods, we are struck with the evident harmony which exists between the respect for international law shown by nations and their prosperity, between their sins and the evils that have come upon them"; and he cites the answer made by von Ranke to the question addressed by Thiers to Germany after the fall of the Second Empire: "Upon whom are you making war?" "Upon Louis XIV." 10 In the words of Schiller, Despagnet tells us that "the history of the world is the world's court of judgment," and one is reminded of the words of the Latin poet:

"Raro antecedentem scelestum

Deseruit Poena pede claudo"

Retribution, though lame of foot, rarely abandons pursuit of the fugitive criminal.

Both of the treatises before us are so comprehensive in their scope and are so elaborate in their treatment of specific questions, and offer such a wealth of illustration upon the subject under discussion, that it is impossible to criticise them in detail. Perhaps an idea may best be had of their method in the treatment of practical questions of international law if we study the attitude of the two authors upon disputed questions towards which French writers have to some extent a national 10 Op. cit. 45-46.

9

9 Op. cit. 12.

tradition to follow, and with regard to which the French Government took a definite stand at the Hague Conference of 1907 and at the London Naval Conference of 1908-09.

It has always been a disputed question with writers of international law whether hostilities may be begun without the necessity of a formal declaration of war on the part of the belligerent states. All parties are agreed that it would be a violation of good faith between nations-and the principle of good faith is a recognized rule of international law-if a state were to deliver an attack upon its neighbor before the dispute between them had reached a more or less acute stage; but they are not in accord as to whether formal notice to the enemy must be given before the first blow can be struck. The school of the Grotian tradition has insisted upon one form or another of a declaration, and that in spite of the fact that the practice of nations during the eighteenth century, and the greater part of the nineteenth has been to the contrary. Bonfils treats the subject fully but somewhat inconclusively. He first argues a priori and offers as the chief reason for the necessity of a declaration the fact that "the peaceful relations existing between states make it necessary for them to warn one another that the state of peace has ceased to exist," that is to say, mutual confidence would be destroyed if hostilities could be begun without notice." But this abstract argument is sufficiently answered by the fact that the strained relations existing between two states prior to war are in themselves a warning of danger ahead. A further argument that without a declaration of war the law of peace would still be in force and the troops of an invading army might be treated as bandits is too theoretical to call for comment. But in a later section Bonfils observes that "it is no longer considered indispensable to address the declaration directly to the government of the enemy state," and that "the form of the declaration is of little importance; what is of importance is the notice and statement of intention, and the precise determination of the date of the commencement of the state of war, since that state entails specific obligations upon the belligerents." 12 Does this imply or not imply that notice must be given to the enemy?

Despagnet's treatment is more satisfactory, but even he leaves us in doubt as to the precise point at issue. He argues that a preliminary 11 Op. cit. 682. 12 Ibid, 686-687.