The question whether Japan was justified in opening hostilities in the circumstances described, without a prior declaration of war, must be judged, of course, by the customary law of nations, and not by the present conventional rules (q). The views of the text-writers on this subject differ greatly. Some insist on the necessity of a prior declaration, or, at any rate, of specific notice directly addressed by an intending belligerent to his foe; others, whilst requiring prior notice, yet regard a proclamation or manifesto-not necessarily addressed to the enemy State-as sufficient; whilst others, again, regard both declaration and notice as unnecessary, treating those usually issued in practice as intended for the information rather of subjects or neutrals than of the enemy (r). International practice on the subject has also varied. Down to the sixteenth century it appears to have been usual to notify an intended war by letters of defiance, and, later, by heralds; but this practice naturally fell into disuse. As the result of an exhaustive inquiry, it has been found that from 1700 to 1870 there are only ten instances in which war was preceded by a formal declaration; whilst there are no fewer than 107 instances in which it was commenced without declaration (s). In the later wars of the nineteenth century, indeed, we notice a tendency to revert to the earlier practice of issuing a formal declaration prior to the commencement of hostilities. Thus, the Franco-German War of 1870 and the Russo-Turkish War of 1877 were each preceded by a formal declaration, although in the latter case the Russians appear to have crossed the Pruth before the declaration was issued; whilst the Spanish-American War of 1898, and the South African War of 1899, were each preceded by an ultimatum which had the effect of a conditional declaration. But in the Chino-Japanese War of 1894, although a declaration of war was issued by each of the belligerents, hostilities really began some time before. In 1904 the newer practice had certainly not reached a stage at which it could be said to have become obligatory or to have displaced what had been the predominant practice of States for nearly three centuries (†). Hence, we may take it that under the customary law, as it obtained in 1904, there was no obligation on an intending belligerent to issue a formal declaration or notice to his foe before commencing hostilities, and that Japan therefore broke no law in commencing hostilities in the circumstances previously described. At the same time, the rule that war may legitimately be begun without prior declaration or notice does not imply that either party would be justified in taking the other unawares. “An attack,” says Westlake, "which nothing had foreshadowed, would be infamous, and third Powers would probably join in resenting and opposing it (u). Hence, even under the customary law-which on this point still remained in force-no attack might lawfully be made

(q) The rules now embodied in the Hague Convention III. 1907, are not declaratory of the customary law, but merely lay down a convenient practice for future observance.

(r) Hall, $ 123.

(s) Maurice, Hostilities Without Declaration of War (1883), 4; The Nineteenth Century, lv., 676, April,

1904.

(t) For a review both of practice and opinion on this point prior to 1907, and as to the issue of manifestoes loosely spoken of as declarations of war, see Hall, § 123 and Taylor. 456; and as to notice to neutrals, pp. 17-8, infra.

(u) International Law, ii. 23.

unless friendly relations had been terminated in sufficient time, and under such circumstances, as to guard against all reasonable danger of surprise (x). But even so, it would still appear that the charge of surprise and treachery made against Japan was unfounded; for the reason that the war arose only after the failure of a long series of negotiations, that both parties had for some time past been hurrying on their preparations, and that both must have regarded an outbreak of war as probable, if not inevitable. On the 6th of February, moreover, the Japanese Government, in severing diplomatic relations with Russia, had expressly reserved its right "to take such independent action as it might consider best to consolidate and defend its menaced position"; and this warning had been given some two days before the attack on Port Arthur, which, although not the starting-point of the war, constituted the chief factor in the Russian charge of treachery and surprise.

With respect to the actual date at which the war may be said to have commenced, a state of war will arise either upon a formal declaration of war, whether unilateral or bilateral; or by some act of force done by one party against the other with intent of war; or by some act of force done by one party, even without such intent, if the other elects to treat it as a cause of war (y). The question of war or no war is at bottom a question of fact, and, if proved to exist in fact, then the state or relation of war will arise with all its attendant consequences, no matter what irregularity or default on either side may have attended its commencement (z). Applying these principles to the case in hand, it seems clear that the mere severance of diplomatic relations by Japan on the 6th of February did not in itself amount to war, for the reason that such a proceeding is frequently resorted to in times of tension or grave misunderstanding without intent of war, although such a practice is greatly to be deprecated (a). Nor, again, did the mere sailing of the Japanese Fleet from Sasebo on the morning of the 6th of February constitute war (b), even though there was now a clear intent to open hostilities, for the reason that a war de facto can only arise out of some direct act of force applied by one party to the other. Hence, the actual commencement of the war would appear to date from the capture by the Japanese of the Ekaterinoslav, which occurred somewhat later on the same day (c). If this be so, then it is from this moment that the new relations inaugurated by war must be deemed to have accrued.

The immediate effect of this controversy was the provisions contained in the Hague Convention III. of 1907. By Art. 1, hostilities must not commence without previous and explicit warning, in the form either of a declaration, with reasons, or of an ultimatum, with conditional declaration of war.

(x) Hershey, 68.

(y) See p. 10, infra.

(2) Hall, § 123.

(a) As to a proposal for its contractual abolition, see Barclay, Problems of International Law and

Diplomacy, 58, 184.

(b) Although it was so treated in the Japanese Prize Courts: 2 R. & T. P. C. 1.

(c) Takahashi, 22, 761.

On the 28th of July, 1914, Austria-Hungary, by telegram, declared herself in a state of war with Serbia as from that date. It should be noted that since Serbia had not ratified the Hague Convention III. of 1907, it became inoperative, so far as she was concerned, by Art. 3 of the Convention. On the 2nd of August the German Ambassador at Petrograd was instructed by telegram to deliver to the Russian Government a statement that the German Empire considered itself in a state of war with Russia. Reasons for this action were contained in the statement.

On the 3rd of August the German Ambassador in Paris presented to the French Foreign Minister during his farewell audience a letter containing allegations of hostile acts committed by French military aviators in German territory, and declaring that, in consequence, the German Empire considered itself in a state of war with France.

On the 4th of August Sir Edward Grey telegraphed to the British Ambassador in Berlin that unless the German Government withdrew their troops from Belgium, the British Government would take all steps in their power to uphold its neutrality and he was to ask for his passports. Asked whether the demand for passports was equivalent to a declaration of war, the British Ambassador replied that there were many cases where diplomatic relations had been broken off without war ensuing, but that unless a satisfactory answer to his question was received by twelve o'clock that night the British Government would be forced to take such steps as their engagements required. The German Minister declared that that was in fact a declaration of war.

On the 23rd of May, 1915, Italy verbally informed the AustroHungarian Ambassador at Rome that from the following day it would consider itself in a state of war with Austria-Hungary. Orders were telegraphed to the Italian Ambassador at Vienna to make a similar declaration. At the same time the declaration, with a long reasoned statement, was despatched to Italian representatives abroad and to foreign Governments (d).

On the 6th of April, 1917, a joint resolution of Congress, declaring that in consequence of repeated acts of war against the United States by Germany a state of war with the latter Power existed, was approved by President Wilson.

Brazil entered the war by a revocation of her neutrality contained in a Note to the United States of the 4th of June, 1917, whilst China. having previously broken off diplomatic relations with Germany, in a Note from the Chinese Minister at Washington to the Secretary of State, declared that in consequence of the refusal of Germany to abandon her policy of submarine warfare, a state of war existed with Germany and Austria-Hungary from the 14th of August, 1917 (e). On the other hand, the majority of States at war with Germany made no formal declarations of war against her allies. Some contented themselves with merely breaking off diplomatic relations.

(d) Brown Scott, Diplomatic Documents, passim.

(e) A. J. I. L., 1917 Supplement,

passim; Garner, i. §§ 25, 26; Hyde, ii. § 603.

(ii) THE DATE AS FROM WHICH THE LEGAL EFFECTS OF WAR WILL ATTACH AS BETWEEN BELLIGERENTS.

THE ELIZA ANN.

[1 Dods. 244 (1813).]

Case.] SHORTLY before the outbreak of war between Great Britain and the United States, in 1812, the Eliza Ann and two other vessels under the American flag were seized by the British in Hanoe Bay, under an order for the detention of American property which had been issued in anticipation of the war, and were sent in for adjudication. On the case coming on for hearing, a claim for the release of the vessels and their cargoes was made by direction of the Swedish Minister, on the grounds that Hanoe Bay was Swedish territory; that Sweden was at the time neutral; and that the capture was therefore invalid. In the result this claim was rejected, and both ships and cargoes were condemned, on the ground that a state of war, with all its attendant consequences, legally existed at the time between Great Britain and Sweden.

Judgment.] Lord Stowell (f)-after according the fullest recognition to the rule that acts of violence by either belligerent within neutral territory were forbidden, unless by permission of, and subject to the responsibility of, the territorial Power-proceeded to deal with the question whether Sweden was at the time to be regarded as neutral. As to this, he pointed out that the conduct of Sweden towards Great Britain had for some time past been of an unfriendly character; that she had excluded British ships from her ports, and had adopted a course of policy imposed on her by France, the enemy of Great Britain, and that Great Britain had then occupied Hanoe, whereupon Sweden had issued a declaration of war. But inasmuch as this declaration was unilateral only, it had been contended on the part of the claimant that no state of war existed at the time between the two countries. It seemed, however, perfectly clear that it was not any the less a state of war on that account. For war might exist even without a

(f) Equally well known as Sir William Scott.

declaration on either side; as had, indeed, been laid down by the text-writers on the law of nations. A declaration of war by one country was not a mere challenge to be accepted or refused at pleasure by the other. On the contrary, it served to show the existence of actual hostilities on one side at least; and hence put the other party also into a state of war, even though he might think proper to act on the defensive only. The treaty by which the war was concluded also clearly showed the existence of an antecedent state of war. Whatever the reasons for the hostile declaration on the part of the Swedish Government, and whether due to fear of France or some other cause, the broad fact was that war existed.

In the second place, it did not appear that the place of capture was within Swedish territory, for Hanoe was at the time in occupation by the British forces, and that possession was hostile possession and had not been disturbed. The claim, therefore, failed both in respect of the neutrality of Sweden and the neutrality of the place of capture.

The main question here was whether, at the time of the capture, Sweden could be said to be at war with Great Britain and the ordinary incidents of war to attach, having regard to the fact that the declaration of war was unilateral only. A similar question was raised at the Hague Conference of 1907, but appears to have been left unanswered (g). In the case of The Eliza Ann, it was held that a declaration of war, even though unilateral, sufficed to establish a state of war, even between the parties, with all its attendant consequences, including the right of capturing enemy property within the territorial waters of either belligerent (h). And the reasoning adopted shows this to be equally applicable in a case where the war originates, not in a declaration, but in some act of force done by one party with intent of war, even though by the municipal law of either State some particular authority alone may have power to declare war beforehand; for, at bottom, war is a question of fact, and once it exists in fact, then all its legal incidents will attach, irrespective of the legality of its commencement (i). Nor is this rule affected, in its results, and as between the belligerents themselves, by the provisions of the Hague Convention III. of 1907. On

(g) Pearce Higgins, 205.

(h) See also the Prize Cases, 2 Black. 668; and as to notice to subjects, The Success, 1 Dods. 133.

(i) See United States V. The Active, Fed. Cas. No. 14,420; Scott.

525;

and The Nayade, 4 C. Rob. at 253. As to the meaning of the expression foreign State at war with any friendly State" contained in the Foreign Enlistment Act, 1870, s. 4, see U. S. v. Pelly, (1899) W. N. 11