notice before engaging in hostilities is required of a state in reason and equity in order to give an opportunity for a friendly settlement, in order to avoid the distrust in international relations which the possibility of an unexpected attack might give rise to, and in order to fix the precise moment when the rights and duties which a state of war imposes upon belligerents and neutrals come into effect. 13 These are admitted propositions. He then states that no formal procedure is necessary in declaring war, and that it is sufficient if war results from an explicit act, which may be found in a direct notice to the foreign government, or in the publication of a manifesto or in the presentation of an ultimatum. Despagnet vigorously combats the British and American doctrine that a formal declaration of war is unnecessary because the date of the commencement of hostilities is marked by the first act of aggression, holding that this doctrine authorizes attacks by surprise and creates a situation of distrust in international relations.

Both authors show a tendency to rely too much upon abstract reasoning and both seem to miss the practical points at issue. The object desired is that neither party to a war shall take the other by surprise, and if this duty of good faith be observed it is of little consequence whether the date of the opening of hostilities be marked by a formal declaration or manifesto or by the commission of a hostile act. Hall, who always keeps in touch with facts, argues convincingly that "no forms [of notice] give security against disloyal conduct, and that when no disloyalty occurs states always sufficiently well know when they stand on the brink of war." 14 At the Second Hague Conference an agreement was reached that hostilities must not commence between the contracting parties "without a previous and unequivocal warning, which shall take the form either of a declaration of war, giving reasons, or of an ultimatum with a conditional declaration of war." An effort was made to secure the adoption of a provision that hostilities should not commence until a definite period has elapsed after the declaration or conditional ultimatum has been issued; but it was thought that this provision would be an obstacle to military strategy, and the amendment was defeated. It is still possible, therefore, for one state to take another by surprise by issuing an unexpected ultimatum and following it up by an attack. But 13 Op. cit. 812. 14 International Law, 6th ed.

the possibility is somewhat remote. As Lawrence well observes, "neither states nor individuals can afford to stand before the world as open and unabashed villains. They assume a virtue if they have it not; and in the particular matter now before us the assumption of virtue means clothing unreasonable demands in diplomatic language and going through some sort of discussion upon them, that is to say, the very notice to the other side of its danger which it is the object of the Hague regulation to secure." 15

Both authors treat in an admirable way the much disputed question of the character of contraband of war. Bonfils defines the subject with his usual analytical skill and shows, first, the provisions of treaties between separate states, next, the legislation of individual states, and then the doctrines of international jurists. He accepts, in contradistinction to the majority of French publicists, the British and American doctrine of absolute and conditional contraband, as well as the doctrine of "continuous voyage." " 16 Despagnet, on the other hand, after a like careful analysis of practice and doctrine, distinctly rejects the idea of relative or conditional contraband, and considers the position taken by Great Britain and the United States on this point as violating the fundamental principles of neutrality. The point of view of Great Britain, he says, is that of a belligerent looking primarily to the protection of a belligerent's interests, whereas the proper point of view should be that of the neutral state whose commercial interests are not to be interfered with so long as it does not participate in hostilities by furnishing to a belligerent objects the very nature of which indicates that they are to be used in war. Despagnet likewise repudiates the doctrine of "continuous voyage" as tending to destroy the liberty of the seas by conferring upon belligerent states the right to paralyze the commerce of neutrals by condemning vessels upon mere suspicions. 17 The Declaration of London [Articles 30, 35] accepts the doctrine of "continuous voyage" with respect to absolute contraband and rejects the doctrine when applied to conditional contraband. Despagnet characterizes this compromise as unreasonable and unjust, although he says that "when one considers

15 International Problems and Hague Conferences, 89.

16 Op. cit. 994-1012. 17 Op. cit. 1255-1274.

that this compromise was imposed upon the plenipotentiaries at London by hard necessity, it is intelligible."

On the law of blockade Bonfils and Despagnet both follow the French rule that a general notification, through diplomatic channels, of the establishment of a blockade does not render a ship liable to capture for breach of blockade unless the general notification be supplemented by a special notification made on the spot by an official of the blockading fleet. Bonfils argues in favor of the necessity of a special notification on the ground that "this notification is the sole method, which is at once certain and not arbitrary, of proving a knowledge of the blockade on the part of the neutral." 18 Despagnet justifies it because of certain theoretical inconsistences which he finds involved in general notifications, and because of practical difficulties in the enforcement of them.19 Both authors seem to overlook the point that the French doctrine makes it possible for a neutral ship to make a first attempt to break the blockade without liability to capture. If a special notification were necessary in every case, a much larger blockading fleet would be needed than is required where neutral ships, having been warned of the blockade by a general notification, are restrained by fear from attempting a breach of the blockade. The objections raised by Bonfils and Despagnet seem inconsiderable, provided the general notification is supplemented by a special one in cases where the former cannot fairly be held to have come to the knowledge of the neutral ship. It is the abuse of the British and American doctrine in the interest of belligerents, not the proper application of it, which is at the bottom of the French rule. The Declaration of London [Art. 17] offers a compromise in the form of a provision that "neutral vessels may not be captured for breach of blockade except within the area of operations of the war-ships detailed to render the blockade effective." Thus neutral ships lose the opportunity to test the effectiveness of a blockade, while belligerents (British and American) abandon their claim to seize ships at any point on their intended voyage to a blockaded port.

The question of the desirableness of making private property of the enemy immune from capture upon the high seas offers an instance of the abmirable manner in which Bonfils and Despagnet deal with proposed

18 Op. cit. 1059.

19 Op.cit. 1009.

reforms in the rules of international law. Bonfils first gives an excellent historical sketch of the practice of nations, showing that the right of capture has been regularly exercised, except when voluntarily abandoned, as it was by Austria, Prussia and Italy in 1866. He then cites a list of resolutions either offered in legislative bodies or taken by commercial associations in favor of the abolition of the right of capture, showing to that extent the attitude of public opinion upon the subject. This is followed by a careful study of the opinions of statesmen and international jurists. British and American writers for the most part defend the practice, while German and Italian writers condemn it. French writers are to be found on both sides, the majority however being against the practice. After an array of arguments on both sides, Bonfils declares himself in favor of a modified form of the right of capture, according to which private enemy vessels would be subject to the rule governing private enemy property on land, namely, that they might be captured by way of requisition, subject to payment at the end of the war. The absolute inviolability of private property he considers "visionary and impracticable, in that it does not take into account the object and necessities of war." " 20

Despagnet furnishes a similar though briefer historical sketch, followed by an excellent résumé of the discussion of the subject at the Second Hague Conference, which he concludes by observing that, although an agreement was not reached, the discussions "leave the impression that a future understanding upon the subject is in no way impossible." 21 In a succeeding section he justifies the proposed inviolability of private property at sea by appealing to the well known but none the less convincing argument that war is a relation between state and state, and that the recognition of this principle contained in the exemption from capture of private property on land should logically be extended to the exemption of private property at sea. In answer to the objection of the advocates of the right of capture, that enemy commerce by sea is an element in the resources of the country, the destruction of which would tend to bring the war to a close, Despagnet asserts that "it is impossible to cite a single war in which resistance to the enemy has been actually overcome in consequence of the losses inflicted upon 21 Ibid, 1071.

20 Op. cit. 866.

its merchant marine; in those wars in which the captures of commercial vessels have been most numerous, it has always been strictly military acts, victories over the land or naval forces of the enemy, which have brought about this result." 22

It will be seen from the above illustrations that both authors are in touch at once with practice and theory, with historical fact and abstract principle, and that they are both not content with merely stating the law but are ready to criticize it when it appears to them to be based upon principles not consistent with international morality. In this respect the two treatises would, if translated, be a valuable addition to English and American text-books, which are generally more concerned with practice than with theory. The editors of the revised editions of the two treatises, M. Paul Fauchille for Bonfils and M. Ch. de Boeck for Despagnet, by the addition of valuable supplemental matter dealing with the results of the Second Hague Conference and the Declaration of London, have brought both works fully abreast of the times.

22 Op. cit. 1072.

CHARLES G. FENWICK.