3

gods. The real reason, however, which gave rise to such a custom must have been the social necessity of some security in the relations between different communities and until such a custom had developed there would be no security from sudden attack, to guard against which the greater part of the communities' productive energy would be turned toward armament and guard duty. It is not unlikely that the reason may go still deeper. Sir Henry Maine, in seeking an explanation for the prohibition against the poisoning of sources, recognized as a rule of war from the dawn of history, thinks that perhaps the explanation is to be found in the feeling that a contest should be decided by the victory of the stronger in a fair fight. If we carry further his suggestion, might we not be led to the conclusion that primitive society, depending, as it did, so much upon the fighting strength of the individual, would unconsciously tend to give its combined support to foster those conditions which should be most conducive to the survival and predominance of those most skilled in arms? If this be true no condition would meet with greater favor than the requirements of a fair fight and the avoidance of all taking by surprise. Another powerful motive for requiring a fair fight may have been to avoid the family feuds which would result from a death caused by a treacherous attack. The common recognition of the right of the stronger to predominate and destroy his opponent would in the case of killing in a fair fight obviate, in a great measure, the resentment which would follow a treacherous attack. Analogy would speedily make this principle one of the rules of intertribal intercourse, and any tribe which violated this principle would rouse its opponents to that frenzy of indignation which is the strongest guardian of all rules of law. If the force born of this frenzy were sufficient to overcome the tribe which had transgressed the rule, annihilation would probably be the penalty, and any tendency to repetition and the engendering of such a practice by that tribe would have disappeared; at the same time the example

International Law, 2d ed., 1894, p. 135, "or it may have been the idea that poisoning was not fair fighting and this shows itself as a very strong feeling in very ancient days that on the whole each combatant ought to have the means of employing his skill in resistance."

would long act as a lesson to deter others. It is equally true that only the weaker tribes would have been tempted to transgress the rule, and from that very fact the chances in favor of the annihilation of the transgressor would be the greater.

All through the Middle Ages chivalry, itself the expression of the needs of the age, strengthened the influence of the principle of a fair fight, which of course has for its very foundation the idea of shunning all taking by surprise, but with the advances in civilization the brain power of the general and statesmen began to be more highly considered than the physical prowess of a Richard Cœur de Lion, and it quickly came to be felt that the organization of the state was fully as important as the physical strength of its citizens or the mere numbers of its armies. Improved weapons and gunpowder came to lessen still more the value of the fighting strength of the individual. All this has shaken to the very foundation that oldest of principles that the strong man should have his way over the weaker. Public opinion began to recognize the necessity for the precedence of the thinker over the mere fighter. This was one of the causes for putting down duelling, which was no longer useful as a means of bringing to light leaders of physical prowess of which a former age had stood so much in need. Duels were likely now to destroy the most useful men. Examinations and degrees had begun to replace the wager of battle or the drinking bout. Other causes which contributed to do away with formal declarations of war were the reasons for entering into such wars. The royal marriages of Europe gave rise to many complications respecting the rival claims to territory - nothing more natural in such cases than for one of the claimants to invade the territory, and war would result without a declaration. Again, hate, due to religious differences, undoubtedly weakened the feeling of the existence of any set of rules common to Catholic and Protestant; but strongest of all must have been the growing feeling that the state must secure its victories at the least cost.

The constant fear of attack which accompanies the doing away with a declaration of war was no longer so destructive to the interests of society. In the case of great states with standing armies

and fortified frontiers readiness for attack became the normal condition. The power to strike quickly and surely and the judgment of when to do so were the means at the disposal of the highly organized and powerful states. And among the powerful and warlike states which have in the past developed the rules of war there was, during a certain period, no desire to return to the old rule, necessitating a declaration. Within the shelter of the state's fortified frontiers citizens pursued their ordinary occupations, leaving to their government questions of war and foreign policy, but as soon as the rivalry of the great states began to change from military to commercial; as soon as the importance of striking first had become so magnified that a small military state of secondary importance could vanquish a more powerful state taken unawares; as soon as the progressive states found themselves utterly exhausted after the completion of even a successful war, the sentiment turned in favor of a declaration previous to the commencement of hostilities. The extent to which this sentiment is entertained, at the present day, varies from state to state. Those which have large fleets and standing armies ever ready to strike wish to retain this advantage, but yet they do not wish another state to commence war suddenly from the fear that it is itself about to be attacked. Hence it is that all agree that a declaration must be given.

4

During the discussion at The Hague some powers wished to fix an interval before which hostilities could not begin, and General den Beer Poortugael argued that it was strange to have no interval before passing from peace to war, when it was necessary to fix one in the less momentous renewal of hostilities after an armistice. The cases are not parallel. At the moment of drawing up an armistice, it generally happens that neither side looks to gain any advantage from a sudden attack; also if no delay were given before the renewal of hostilities there could be no surprise, because each side would rest upon its arms. A stronger argument advanced by General den Beer, as well as others, is the desirability of doing away with the additional military burden on the powers, made necessary by being constantly on a war footing and ready to mobilize instantly. Here,

4 Second commission; second subcommission; third session, July 12.

as Mr. Renault says, in his truly remarkable report, is a practical opportunity of lessening the burdens of armament, but, he adds, the time is not yet ripe for such an advance.

Every country will, then, in making a declaration of war, fix the interval, if any, which it shall deem best suited to its interests; but we must remember that public opinion has never given up those old ideas of the fair man-to-man fight, and the country which gives so short an interval as to take its adversary by surprise will, to its regret, find itself condemned the world over. The fear of becoming a stench in the nostrils of the nations will act as an incentive to make every government declaring war fix a fair interval.

Although the convention does not provide for an interval, it does stipulate that the declaration of war must give the reason necessitating a resort to arms. As Mr. Renault says:

Governments ought not to employ such an extreme measure as a resort to arms without giving the reasons. Everyone, whether citizen of the countries about to become belligerents or of neutral powers, should know why there is to be a war in order to judge of the conduct of the two adversaries. This does not mean that we are to cherish the illusion that the real reasons for a war will always be given; but the difficulty of formulating reasons, the finding it necessary to give those which are without foundation or out of proportion to the gravity of war itself all this will have the effect of attracting the attention of neutral states and of enlightening public opinion.

The first article of the convention offers an alternative form of declaration in the ultimatum which has the added advantage of fixing an interval, the reason for the war being made manifest in the refusal to comply with the conditions laid down. However, here again the demands contained in the ultimatum may have no real connection with the real cause in dispute. At the present time. an ultimatum which demanded the performance of a particular act on the part of the adversary would be most likely to lead to war. So generally is this realized that the reasons for making the ultimatum would most probably be looked to rather than the demand. it contained. Nevertheless, a state wishing to avoid giving its reasons for declaring war may prefer to give out an ultimatum containing some demand compliance with which it does not expect.

The Chinese military delegate was desirous of obtaining a definition of what constitutes war, his country having been upon several occasions in the past the object of military expeditions carried on by powers who maintained that they were not at war. Further, he asked if a declaration of war might be considered by the state against which it was directed as an unilateral act without effect.5 No one replied to those embarrassing questions. Governments are not loath to have the definition of what constitutes war shrouded in mystery; for in the greater number of states possessing a parliamentary form of government the deciding to make war is hedged about with formalities and special constitutional requirements, and governments have in the past and are likely in the future to find it convenient for reasons of domestic and foreign policy to resort to measures of war while maintaining that no war exists. But even were the powers desirous of defining war, the task would be most difficult, because it would have to be decided whether a pacific blockade was a measure of war and at just what point to draw the line separating reprisals from war.

However, China may rest assured that the country which declares war, even though it meet with no response, may apply to the country. against which the declaration is addressed all the condition of regular warfare, and may avail itself of any or all of the effects, such as abrogation of political treaties, etc., which are among the consequences of a state of war.

6

During the discussion the delegates of certain countries feared that an international convention respecting the declaration of war might be contrary to their constitutional provisions, but it was explained to the satisfaction of all that the proposed convention in no way affected the deciding for or against the entering into a war, but after the constitutionally competent body had in accordance with the constitutional provisions decided upon war it was for the executive or organ of the government charged with the conduct of its foreign affairs to declare the war. The convention only relates

Second commission; second subcommission; third session, July 12 (remarks

of Colonel Tinge).

Second commission; second subcommission; third session, July 12.