In the beginnings of international law, in Grotius and his predecessors and immediate successors, discussion of the Right of War, the jus ad bellum, takes up a great deal of room by the side of the Right in War, the jus in bello. Today, however, the question, When is war justified? has almost ceased to be discussed. The so-called predecessors of Grotius, like himself and his immediate followers, accepted from the Roman law the notion of the bellum justum piumque. This concept was purely formal. To make a war a bellum justum piumque nothing more was required than compliance with the precepts of the fetial law as to the formalities of declaring war. To be sure, these, at least originally, required a resolution of the Senate and its ratification by the Centuriate Comitia. Later, however, this requisite, to which one could perhaps not always deny some material significance, completely disappeared behind the empty ceremony which the Pater Patratus performed at the boundary of the enemy country with the “hasta ferrata aut sanguinea prœusta” hurled across the same. Nay, in the war with Pyrrhus, a deserter from the former’s army was allowed to buy a piece of ground in Rome, into which the spear was flung as into hostile territory, in order that the Pater Patratus might not have to go all the way to the frontier. On these formalities, which naturally became more and more futile, Roman historians based their country’s reputation of never having waged an unjust war. Still, the fetial law had at least the one advantage of giving the adversary a 33 days’ respite for deliberation.

The celebrated scrap of paper incident is perhaps thought so effective a commentary on the “legal nature” of treaties that it needs no addition. “Treaties won’t stand before policy and there’s an end on’t.” The student of history is likely to take a more cautious view. He knows that treaties have been one-sidedly abrogated before. He knows that the ambiguous phrase rebus sic stantibus has generally been an implied accompaniment of treaties, and yet he knows that treaties have continued to be concluded and in general observed.

International law concerns itself so largely with a state of war that the present world-conflict has necessarily had an important bearing upon many of its usages and principles and the opinion has been freely expressed, by some whose views are entitled to respect, that the events of this war have placed the science itself in jeopardy. Without attempting to express an opinion on that point, it is clear that when the war is over, one of the first tasks to be undertaken must be the readjustment of the dislocated parts of the system to the new conditions which have arisen. In doing this we shall probably be led to trace the development of the principles of international law from their earliest formulation up to the present day; but quite outside of this practical object, the accomplishment of which must be left to the future, it may not be without interest at the present time, from the purely historical point of view, to recur to some of the circumstances in which the science came into existence, by calling attention to a much neglected book which shows us in the making some of the important principles of international law which are at issue today, a book written by a man who introduced the modern method of studying that subject. The writer to whom reference is made is Alberico Gentili, and the work in question is his Advocatio Hispanica or the Pleas of a Spanish Advocate.

The policy of the United States Government in permitting the exportation of arms, munitions, and other war supplies for the use of belligerents during the present war has been the subject of much discussion in Congress and in the press and has provoked diplomatic remonstrances from the Governments of Germany and Austria-Hungary. As a general proposition, it has been admitted by those who complain of the extensive traffic which has gone on between American manufacturers and certain of the belligerents, that neutral governments are not by the existing rules of international law bound to prevent their nationals from engaging in such traffic; but it has been argued that special circumstances to which the present war has given rise give a “new conception to the aspect of neutrality” and that an abnormal and unprecedented situation has been created which makes the continued furnishing of arms and munitions to the belligerents on one side, when their adversaries are unable to avail themselves of the American markets, a violation of the spirit of strict neutrality.

The Russo-Mongolian Agreement of November 3, 1912, with its protocol; the Russo-Chinese Declaration of November 5, 1913, with the notes exchanged on that date; the Russo-Mongolian Railway Agreement of September 30, 1914, and the Tripartite Agreement between China, Russia, and Mongolia signed on June 7, 1915, together with the declaration of China and Russia, accompanying this last-mentioned document, are all printed in the Supplement to this number of the Journal and are deserving of more than a passing notice, for they undertake to define the relations of three great nations and recall historic events of considerable importance.

On July 29,1916, the United States District Court for the Eastern District of Virginia entered a decree to restore to the British claimants the steamer Appam, formerly an English merchant vessel, captured by the German cruiser Moewe upon the high seas and sent into Newport News to be laid up pending the war between Great Britain and Germany. In a very elaborate opinion, the court held that the Appam had no right under international law or the treaty with Prussia of May 1, 1828, to use an American port as an asylum; that it did not have a right under the circumstances to enter an American port at all; that by so doing it violated the neutrality of the United States, and was therefore, with the proceeds of the cargo, to be restored, according to the American practice, to the British owners at the date of capture. The case is a very interesting one from the standpoint of international law, and by reason of its importance, it is to be appealed to the Supreme Court of the United States in order that, as far as the United States is concerned, a definite decision may be reached upon the points of law involved. The facts of the case and the reasoning of the District Court will, however, be set forth at this time and in this place.