CORRESPONDENCE. To the Editor of THE GREEN BAG :
Sir:—The unfortunate war now existing between Russia and Japan, and the lack of a previous and formal declaration has given rise to much discussion in the press as to the necessity and advisability of a declaration previous to hostilities. As to the advisability of a declaration, there can be no doubt, for the rights and lia bilities of belligerents arise upon the exist ence of war. A formal act of the Govern ments fixing the date of the outbreak of war, gives and taxes the whole world, bellig erent, as well as neutral, with notice. It is of importance to the belligerents, for it makes them alien enemies from the date established, and forbids friendly communication of all kinds. It is of importance to neutrals, for it subjects them to liabilities non-existent in time of peace. A formal declaration is, there fore, in the interests of the belligerents them selves desirable. But however desirable it may be, it is not necessary. War is not a theory; it is a fact, and its existence is ascertained in the same manner as any other fact. The first act of a hostile nature sufficiently establishes the be ginning as well as the existence of war. (Dole 71. Merchant's Mutual Marine Insurance Co., 51 Me. 465, 470; The Tctttonia, L. R. 4 P. C. 171; The Panama. 87 Fed. R. 927, 933.) A declaration may interfere with important mil itan- or naval advantages arising from strik ing the first blow. This may be bad morals, but it is good law. Indeed, it may be well nigh impossible to issue a formal declaration, as in the cases of a civil war (The Prize Cases, 2 Black 665; Matthews v. McStea, 91 U. S. 7.) In the matter of practice, it may be said that from the middle of the eighteenth cen tury belligerents have consulted their indi vidual interests, at times making a formal declaration; at other times, striking the blow in full peace and declaring the war afterwards by legislative enactment. Genera! Maurice, in his interesting little work on "Hostilities Without Declaration of War," published in 1883, enumerates no less than one hundred
and four instances of war without previous declaration, from the years 1700-1870. From which it would seem, admitting that a decla ration is advisable, that bad precedent makes binding, if not "good" law. The late W. E. Hall admirably summarizes the doctrine in his masterly "Treatise on International Law." (5th edition, pp. 377-385.) In regard to the justice of a particular war, we may well rest content with Shakespeare's line: "Thrice is he armed that hath his quar rel just." If we attempt to discriminate we fail utterly. Russia regards the war as just and stigmatizes Japan's conduct as little less than nefarious. Japan considers Russia's conduct no less reprehensible. Each belli gerent pins the badge of moral purity to its breast and seeks to have "his quarrel just as far as the subjects are concerned, and each probably succeeds. Self-preservation is above nice ethical distinctions, and in the ultimate analysis war may be said to involve this doctrine to a greater or less degree. And of self-preservation each nation is naturally the final judge. In conclusion, war is a fact and is prov able as such whether it be officially declared or not; its justice or injustifiableness in a particular instance depends upon the inter ests of the belligerents, of which they are the proper if not the sole judges. I am, Very truly yours, JAMES B SCOTT. Columbia University School of Law, New York, April 4, 1904. To the Editor of THE GREEN BAG : Sir: —-Why should a lawyer be put to the trouble of marking a jury case for trial? In every State in our country with the possible exception of Maine and Massachusetts a case is put on the trial list by the court when issue is joined by the parties and the plead ings are at an end. For a lawyer to be obliged to mark a case for trial after he has entered it in court, seems to me an unneces sary waste of time and labor. JOSEPH M. SULLIVAN. Boston, April ID. 1904.
