who do not belong to the "militant" school of pacificists. Aside from its failure to agree upon a plan for obligatory arbitration or to adopt the American scheme for a real permanent high court of abritral justice or supreme court of the nations, it is to be regretted that the Second Hague Peace Conference did not see its way clear to recommend that third powers suggest recourse to commissions of inquiry in all cases of serious controversy regarding facts, that they did not make the use of such commissions obligatory, at least in certain cases, and give them the right to fix responsibility and apportion blame as well as to elucidate facts. It is also a matter for regret that the functions of the Administrative Council and International Bureau at The Hague were not enlarged to enable them to exert a more powerful influence in behalf of peace and the enforcement of law; and that the employment of members of the Hague Tribunal as agents or counsel was not absolutely prohibited.

On the other hand, some excellent results were obtained. Commissions of inquiry were provided with a form of organization and rules of procedure which, although purely optional, seem sufficiently detailed and adequate for their purpose. The rules of procedure suggested for the use of the Hague Tribunal were considerably enlarged and strengthened, and the functions of that body somewhat increased. Special tribunals with a more summary mode of procedure were devised for the settlement of disputes of a special or technical character. Most important of all, governments desiring arbitration of \{ a given dispute are authorized by article 48 to appeal directly to the International Bureau at The Hague, which must immediately communicate this fact to the other power.

Surely these are important steps in advance and, taken collectively, constitute no small service to the cause of peace and arbitration.

AMOS. S. HERSHEY.

CONVENTION RELATIVE TO THE OPENING OF

HOSTILITIES1

ARTICLE I.

The contracting powers agree that hostilities between them should not begin without a previous unequivocal notice, which shall be either in the form of a declaration of war with reasons therefor, or of an ultimatum with a conditional declaration of war.

ARTICLE II.

A state of war shall be made known without delay to the neutral powers, and shall not be effective with regard to them until they receive a notice, which may be given even by telegraph. However, the neutral powers cannot use the lack of a notice as a pretext if it should be proven beyond doubt that they really knew of the state of war.

The convention as drawn up is substantially the same as the proposition submitted by the French delegation. -and that proposition follows in the main the text adopted by the Institute de Droit International at its meeting at Ghent (September, 1906), when the whole subject was carefully discussed.2

From the earliest times and in all stages of civilization we find the custom of declaring war before commencing hostilities. Certain primitive tribes which were in a constant state of feud may be said to have lived in a continual state of war, but when a more stable condition was reached where peaceable conditions were maintained the sentiment was also developed that hostilities ought not to be commenced without previous warning. In fact, without such a sentiment peace between two contiguous and jealous communities could not have lasted any length of time. The explanation which satisfied the minds of the chiefs may have been that any breach of peace in which the adversary was taken by surprise would be a sacrilegious violation of an oath; for peace was based on oaths sworn to the

1 For the full text of the Convention with translation, see Supplement. 2 Annuairé De l'Institute de Droit International, session de Gand 1906.

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

3 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.

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.