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Ninth Edition. A Compendium of the Law of Torts. By HUGH FRASER, M.A., LL.D. London: Sweet & Maxwell. 1914. In the preparation of the present edition of this admirable students' guide to the Law of Torts, Mr. Fraser has again had the assistance of Mr. Roland Burrows. This book is the outcome of a series of lectures delivered by Mr. Fraser at Liverpool nearly thirty years ago. It was compiled with a view to assist those of his own pupils who desired to study this branch of the law. The present writer was one of Mr. Fraser's first pupils, and after more than a quarter of a century, he still retains a vivid recollection of the invaluable aid those notes became, not only for examination purposes, but also in his practice at the Bar. As an introduction to this branch of the law this compendium has from the first held a leading position from which it will not easily be displaced.

Books received, reviews of which have been held over owing to want of space :-Holland's Law relating to the Child; Hodsoll's Practical Accounts for Executors; Alverstone's Recollections of Bar and Bench; Bouvier's Law Dictionary; Bosanquet's British Enactments in Force in Native States; Rose's The Origins of the War; Barclay's Law and Usage of War; Stockton's Outlines of International Law; Tregarten's Hearsay Evidence; Trotter's Law of Contract during War; Butterworths' Workmen's Compensation Cases, Vol. VII; Annual County Courts Practice; Magistrate's General Practice; Godefroi's Trusts and Trustees; Dicey's Law of the Constitution; Paterson's Licensing Acts; Yearly County Court Practice; Crew's Procedure at Meetings; Railway and Canal Traffic Cases, Vol. XV; del Vecchio's The Formal Bases of Law; Melville's Principles of Roman Law.

Other Publications received:-Lowry's Martial Law within the Realm (John Long); The Companies Diary and Agenda Book (Jordan & Sons); Sarfatti's Par Una Maggior Tutela, and Il Processo Civile Inglese; Fry's London Charities (Chatto & Windus); Brown's Judicial Recall (Government Printing Office, Washington); Lawyer's Remembrancer (Butterworth & Co.); Marburg's Law and Judicial Settlement; Richards' Does International Law still exist? (Oxford University Press); Kranenburg's Beteekenis der Rechtsverge-lijking.

The Law Magazine and Review receives or exchanges with the following amongst other publications:-Juridical Review, Law Times, Law Journal, Justice of the Peace, Law Quarterly Review, Irish Law Times, Australian Law Times, Canada Law Journal, Canada Law Times, Chicago Legal News, American Law Review, Harvard Law Review, Case and Comment, Green Bag, Madras Law Journal, Calcutta Weekly Notes, Law Notes, Law Students' Journal, Bombay Law Reporter, Medico-Legal Journal, Indian Review, Kathiawar Law Reports, The Lawyer (India), South African Law Journal.

THE

LAW MAGAZINE AND Review.

No. CCCLXXVI.-MAY, 1915.

IT

I. AIRCRAFT ATTACKS.

T is proposed in this article, first, to ascertain as far as possible the law with respect to aircraft attacks, and, secondly, to consider its application to recent incidents in the War. A preliminary investigation of the law is essential, as there has been a tendency in some quarters to take the general knowledge of it for granted, and in others to base condemnation of cruelty in these attacks on moral grounds only. This is adverse to the interests of International law. Looking at the mere brutal consequences of the bombdropping on Yarmouth and King's Lynn, any human being, lawyer or layman, must justly feel the strongest moral indignation. It is a pitiful spectacle that the sole material results of the attack were some ruined houses and the deaths of a middle-aged shoemaker, two women and a boy. But the lawyer must carry matters a little further than this.

If International law condemns such acts, so much the better; if it justifies them, then it has failed sadly, but not hopelessly, for it rests with neutrals during the war to foster a body of opinion in favour of better rules, and with all States at the end of the war to fix and to accede formally to these rules. In the meantime, it may be conceded that the

conventional law (i.e., that based on international agreement) is uncertain, and also that practice is fluid. But it must also be insisted that the general principles of International law remain unchanged, and give a key to the answer of some of the questions that have arisen.

The whole crux of the legal position of aircraft in war is their novelty. Till the present war there had not been much opportunity of using them for attacks, though they had already been employed in the wars in Tripoli, Mexico, and the Balkans, and in the last case in such a way as to produce a decided moral effect. It is generally safe to say that new weapons will always be unpopular with the belligerent against whom they are used, and suspected by neutral Powers, and that the laws of war with respect to them will be uncertain or non-existent.

Of the prejudice against warlike inventions we get plenty of proof in the history of warfare. When Bayard was mortally wounded by an arquebus shot, in 1524, he thanked God that he had never shown mercy to a musketeer, and Montluc, the French marshal of the sixteenth century, spoke of the arquebus as "the devil's invention." Yet gunpowder had been used in the battle of Crécy nearly two centuries before this.

When the cross-bow was new, it was so detested that it was anathematised by the Lateran Council in 1139 as artem illam mortiferam et Deo odibilem, and, in consequence, some rulers ceased to issue it to their troops. Red-hot shot was at first thought an improper method of warfare. So was the bayonet, which was well known long before it was in common use, no doubt, as Sir Henry Maine suggests, because it was feared that infantry caught using it would get no quarter.

The same writer remarks that "when it was first invented, the torpedo was received with downright execration." We had already taken some steps to defend

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our shores by something of the sort against Napoleonic attacks, when the peace of 1814 shelved the invention till the American Civil War, 1861-65, when it re-appeared as the "American Turtle."

Thus the belligerent who uses a new weapon must expect to be unpopular in any event, and the more effective the weapon is in destruction, the worse will be the feeling against it. But he can console himself with the other effect of its introduction-the absence of any clear law on the subject.

This gives him a dialectical advantage, for, putting aside as prejudiced the complaints of the other belligerent, neutral States find it extremely difficult to lodge a protest with much effect when they have to cast it in the form of an argument of what the law ought to be instead of a statement of what it is. The user of the new implement or method can always retort with other arguments, which are at least plausible

From the nature of the Laws of War, it follows that there will always be no clear rules on any new weapon till it has passed through the fire of war. Till then its value is unknown, and, unhappily, there is no other mode of testing it. But it must be repeated that national acts by no means alter the first principles of International law, and though these may not help to detail positive rules for the use of a new weapon, they can certainly pronounce negatively against outrageous abuse of it. When the torpedo was invented, there may have been difference of opinion as to whether it were a lawful weapon at all. But there could have been no difference of opinion as to whether it would have been lawful to sink by a torpedo an enemy fishingsmack without any notice to its crew. That would be a disgraceful outrage of the laws of war, whether the sinking had been by a weapon known for a thousand years or invented in that very war.

Aircraft as a mode of attack are practically new weapons in this war. Their position must be examined firstly from the point of view of the Hague Conferences, and secondly from the general principles of International law, apart from the special rules of those Conferences.

There had been little serious attempt before 1899 to grapple with the problem of aerial warfare. The only case of any importance in which it had demanded consideration was the use of balloons by the French in the Franco-Prussian War of 1870. They were not employed for purposes of attack at all, but the Germans seem to have had a confused idea that persons in them who crossed the German lines were liable, if caught, to the summary treatment of spies. No such prisoner was in fact ever executed, but aeronauts were treated very harshly. M. Verrecke, who descended with others in Bavaria, was sent to a military prison, and was not freed till two months after the treaty of peace had been signed; and M. Nobécourt, who was captured in similar circumstances, was sentenced to death, though the sentence was commuted to imprisonment in a military fortress. The German view was wrong in principle, for none of these persons acted with the secrecy or disguise essential to the character of a spy. Nor does the technical definition of a spy, which has since been adopted in Art. 29 of the Hague Convention 1899, lend any more colour to the contention. He is a person who, "acting clandestinely, or on false pretences," obtains or seeks to obtain information in the zone of operations of a belligerent.1

The question of aircraft as a means of attack thus came before the Conference of 1899 as one primæ impressionis. The contracting Powers agreed to prohibit, for a period of

Cf. Oppenheim, International Law, II, sect. 160; M. Fauchille's proposed Code (Art. 7), Annuaire de l'Institut de Droit International, 1911; M. le Moyne's proposed Code (Art. 6), in Le droit futur de la guerre aeriénne (Nancy, 1913); and Mr. J. M. Spaight's proposed Code (Art. 8), in Aircraft in War (1914), p. 116.

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