The American Historical Review/Volume 23/Reviews of Books/The Elements of International Law

The Elements of International Law, with an Account of its Origin, Sources, and Historical Development. By George B. Davis. Fourth edition, revised by Gordon E. Sherman, formerly Assistant Professor of Comparative and International Law in Yale University. (New York and London: Harper and Brothers. 1917. Pp. viii, 668. $3.00.)

This volume is strictly what it purports to be, a revised edition of General Davis's work. He lived long enough to record the work of the two Hague Conferences of 1S99 and 1907, but not long enough to judge of its practical value. His third edition was published in 1908, before the adoption, ad referendum, of the Declaration of London. Professor Sherman prints in an appendix (H, pp. 604–620) the text of that paper, and a succinct and clear account of how far it has affected the pending European wars. Appendix I also gives our treaty of 1909 with the Dominican Republic

It was, of course, desirable from the publishers' standpoint to make as few changes as might be, in the stereotype plates of the edition of 1908. It remains Davis's book. It remains a treatise in which the author writes as a military man, and gives special consideration to problems connected with war. This gives it a particular value at the present time.

Professor Sherman found it necessary to rewrite important parts of the first two chapters, which treat of the value and sources of international law and the nature of a political state. This he has done with discrimination and good judgment.

In printing the Declaration of London he has added notes, referring to the bearing of its dispositions on the present wars, as wrought out in practice. One could wish that his annotations of this nature had been more numerous, if not more extended. Thus, the question of the right to mark off a mare clausum off an enemy's coast, which was considered with some favor by our Naval War College in 1912, and has been claimed by most of the belligerents since 1914, is not discussed or referred to, except (p. 607) in one of these notes to the chapter on the Declaration on "Blockade in Time of War". In this note it is briefly stated that "the provisions of this chapter are in large measure avoided by the war-zone device", and that the blockade of the Austro-Hungarian coast in 1915 "seemed to have been the only real blockade of the first year of war".

The book contains many recent papers, often the subject of reference, such as the British lists of contraband, absolute and conditional, up to April 30, 1915 (pp. 609–611); and new provisions of the Imperial German Prize Ordinance as revised April 8, 1915 (pp. 614–615). It also refers to several important American statutes passed and departmental regulations prescribed, since the publication of the third edition, such as the compilation of circulars as to citizenship and passports, published by the State Department in 1915 (p. 164), and (p. 602) the "United States Radio Communication Laws and Regulations" of 1914.

As to the questions raised by the sinking of the Lusitania, Professor Sherman takes the view (p. 30) that "international law will protect the lives of all non-combatants afloat or ashore; and whether the merchant-ship be neutral or hostile, whether it carry contraband or non-contraband goods, the belligerent has, indeed, a right to enforce search of neutrals and a right to capture belligerent merchant-ships, but none of these may be destroyed until human life aboard has been placed in safety". In discussing the case of the Nereide (9 Cranch 388) he holds that Marshall's opinion justifies the proposition asserted in the memorandum of our State Department of March 25, 1916, that merchant vessels are under no circumstances subject to attack on the ground that they are armed for defense. He adds that these principles apply with great force to modern submarine warfare; that a submarine is not justified in attacking and destroying a merchantman, either belligerent or neutral, because it is armed, or because it carries contraband merchandise, without first removing all passengers and papers of value; and that if the vessel be then destroyed, the belligerent must be taken to assume all risk of having acted without warrant of law (p. 602).

The proof-reading has been poorly done.