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in the same channel, and actually resided in the Saxon Wittenagemote. (d) But in the monarchies of Europe, which arose upon the ruins of the feudal system, this important prerogative was generally assumed by the king, as appertaining to the duties of the executive department of government. Many publicists (e) consider the power as a part of the sovereign authority of the state, of which the legislative department is an essential branch. There are, however, several exceptions to the generality of this position; for in the limited monarchies of England, France, and Holland, the king alone declares war, and yet the power, to apply an observation of Vattel to the case, is but a slender prerogative of the crown, if the parliaments or legislative bodies of those kingdoms will act independently, since the king cannot raise the * 52 money requisite to carry on the war without their consent. The wild and destructive wars of Charles XII. led the states of Sweden to reserve to themselves the right of declaring war; and in the form of government adopted in Sweden, in 1772, (a) the right to make war was continued in the same legislative body. This was the provision in those ephemeral constitutions which appeared in Poland and France the latter part of the last century; and as evidence of the force.of public opinion on this subject, it may be observed, that in the constitution proposed by Bonaparte, on his re-ascension of the throne of France, in 1815, the right to levy men and money for war was to rest entirely upon a law to be proposed to the House of Representatives of the people, and assented to by them. In this country, the power of declaring war, as well as of raising the supplies, is wisely confided to the legislature of the Union; and the presumption is, that nothing short of a strong case deeply affecting our essential rights, and which cannot receive a pacific adjustment, after all reasonable efforts shall have been exhausted, will ever prevail upon Congress to declare war. It has been usual to precede hostilities by a public declaration

(d) Millar's View of the English Government, b. 1, c. 7. In the capitulation or great charter, signed by Christopher II., King of Denmark, on his clection to the throne in 1319, by the diet or assembly of the nobles, it was, among other things, declared that he should not make war without the advice and consent of the prelates and best men of the kingdom. Bishop Muller's Ancient History and Constitution of Denmark, reviewed in the Foreign Quarterly Review, No. 21.

(e) Puff. b. 8, c. 6, sec. 10; Vattel, b. 3, c. 1, sec. 4.

(a) Art. 48. But this free constitution of Sweden was overturned before the end of the year 1772, and a simple despotism established in its stead.

communicated to the enemy. It was the custom of the ancient Greeks and Romans to publish a declaration of the injuries they had received, and to send a herald to the enemy's borders to demand satisfaction, before they actually engaged in war; and invasions without notice were not looked upon as lawful. (b) War was declared with religious preparation and solemnity. According to Ulpian, (c) they alone were reputed enemies 53 against whom the Roman people had publicly declared war. During the middle ages, a previous declaration of war was held to be requisite, by the laws of honor, chivalry, and religion. Louis IX. refused to attack the Sultan of Egypt until he made a previous declaration to him by a herald at arms; and one of his successors sent a herald, with great formality, to the governor of the Low Countries, when he declared war against Spain, in 1635. (a) But, in modern times, the practice of a solemn declaration made to the enemy has fallen into disuse, and the nation contents itself with making a public declaration of war within its own territory, and to its own people. The jurists are, however, divided in opinion, in respect to the necessity or justice of some previous declaration to the enemy in the case of offensive war. Grotius (b) considers a previous demand of satisfaction, and a declaration, as requisite to a solemn and lawful war; and Puffendorf (c) holds acts of hostility, which have not been preceded by a formal declaration of war, to be no better than acts of piracy and robbery. Emerigon (d) is of the same opinion; and he considered the hostilities exercised by England, in the year 1755, prior to any declaration of war, to have been in contempt of the law of nations, and condemned by all Europe. Vattel strongly recommends (e) a previous declaration of war, as being required by justice and humanity; and he says, that the fecial law of the Romans gave such moderation and religious solemnity to a preparation of war, and

(b) Potter's Antiquities of Greece, b. 3, c. 7; Livy, b. 1, c. 32; Cic. de Off. b. 1, c. 11; De Repub. lib. 3.

(c) Dig. 49, 15, 24.

Cicero says, that under the Roman kings it was instituted law, that the war was unjust and impious, unless declared and proclaimed by the heralds

under religious sanction. De Repub. lib. 2, 17.

(a) Emerigon, Traité des Ass. p. 561.

(b) B. 1, c. 3, sec. 4.

(c) B. 8, c. 6, sec. 9.

(d) Traité des Ass. tom. 1, p. 563.

(e) B. 3, c. 4, sec. 51.

VOL. I.

bore such marks of wisdom and justice, that it laid the solid foundation of their future greatness.

Bynkershoek has devoted an entire chapter to this ques*54 tion, (f) * and he maintains that a declaration of war is not requisite by the law of nations, and that though it may very properly be made, it cannot be required as a matter of right. The practice rests entirely on manners and magnanimity, and it was borrowed from the ancient Romans. All that he contends for is, that a demand of what we conceive to be due should be previously made. We are not bound to accompany that demand with threats of hostility, or to follow it with a public declaration of war; and he cites many instances to show, that within the last two centuries wars have been frequently commenced without a previous declaration. Since the time of Bynkershoek, it has become settled by the practice of Europe, that war may lawfully exist by a declaration which is unilateral only, or without a declaration on either side. It may begin with mutual hostilities. (a) After the peace of Versailles, in 1763, formal declarations of war of any kind seem to have been discontinued, and all the necessary and legitimate consequences of war flow at once from a state of public hostilities, duly recognized, and explicitly announced, by a domestic manifesto or state paper. In the war between England and France, in 1778, the first public act on the part of the English government was recalling its minister, and that single act was considered by France as a breach of the peace between the two countries. There was no other declaration of war, though each government afterwards published a manifesto in vindication of its claims and conduct. The same thing may be said of the war which broke out in 1793, and again in 1803; and, indeed, in the war of 1756, though a solemn and formal declaration of war, in the ancient style, was made in June, 1756, vigorous hostilities had been carried on between England and France for a year preceding. In the war declared by the United States against Eng

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land, in 1812, hostilities were immediately commenced on *55 our part * as soon as the act of Congress was passed, without waiting to communicate to the English government any notice of our intentions.

(f) Quæst. J. Pub. b. 1, c. 2.

(a) Sir Wm. Scott, 1 Dod. Adm. 247.

But, though a solemn declaration, or prévious notice to the enemy, be now laid aside, it is essential that some formal public act, proceeding directly from the competent source, should announce to the people at home their new relations and duties growing out of a state of war, and which should equally apprise neutral nations of the fact, to enable them to conform their conduct to the rights belonging to the new state of things. War, says Vattel, (b) is at present published and declared by manifestoes. Such an official act operates from its date to legalize all hostile acts, in like manner as a treaty of peace operates from its date to annul them. As war cannot lawfully be commenced on the part of the United States without an act of Congress, such an act is, of course, a formal official notice to all the world, and equivalent to the most solemn declaration.

binds subjects.

When war is duly declared, it is not merely a war between this and the adverse government in their political characters. Every man is, in judgment of law, a party to the acts of State of war his own government, and a war between the governments of two nations is a war between all the individuals of the one and all the individuals of which the other nation is composed. Government is the representative of the will of all the people, and acts for the whole society. This is the theory in all governments; and the best writers on the law of nations concur in the doctrine, that when the sovereign of a state declares war against another sovereign, it implies that the whole nation declares war, and that all the subjects of the one are enemies to all the subjects of the other. (c) Very important consequences concerning the obligations of subjects are deducible from this principle.

* When hostilities have commenced, the first objects that *56 naturally present themselves for detention and capture Enemy's are the persons and property of the enemy found within the territory on the breaking out of the war. According

(b) B. 3, c. 4, sec. 64.

property within the country.

(c) Grotius, b. 3, c. 4, sec. 9 ; c. 4, sec. 8; Burlamaqui, part 4, c. 4, sec. 20; Vattel, b. 3, c. 5, sec. 70.

1 The doctrine of the text has been decided to be applicable to the citizens of the United States within the territory actually controlled by the Rebels in the present civil war; so that the United States may lawfully apply to them the rules which belong to their relation of disobedient citizens, or of public enemies, or both, as occasion demands. The Prize Causes, 2 Black U. S. 635.

to strict authority, a state has a right to deal as an enemy with persons and property so found within its power, and to confiscate the property, and detain the persons as prisoners of war. (a) No one, says Bynkershoek, ever required that notice should be given to the subjects of the enemy, to withdraw their property, or it would be forfeited. The practice of nations is, to appropriate it at once, without notice, if there be no special convention to the contrary. But though Bynkershoek lays down this, as well as other rules of war, with great harshness and severity, he mentions several instances, arising in the 17th, and one as early as the 15th century, of stipulations in treaties, allowing foreign subjects a reasonable time after the war breaks out to recover and dispose of their effects, or to withdraw them. Such stipulations have now become an established formula in commercial treaties. (b)1 Emerigon (c) considers such treaties as an affirmance of common right, or the public law of Europe, and the general rule laid down by some of the latter publicists is in conformity with that provision. (d) The sovereign who declares war, says Vattel, can neither detain those subjects of the enemy who are in his dominions at the time of the declaration of war, nor their effects. They came

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into the country under the sanction of public faith. By per*57 mitting them to enter his territories, and continue there, the sovereign tacitly promised them protection and security for their return. He is, therefore, to allow them a reasonable time to retire with their effects, and if they stay beyond the time, he has a right to treat them as disarmed enemies, unless detained by sickness, or other insurmountable necessity, and then they are to be allowed a further time. It has been frequently provided by treaty, that foreign subjects should be permitted to remain, and continue their business, notwithstanding a rupture between the

(a) Grotius, b. 3, c. 9, sec. 4; c. 21, sec. 9; Bynk. Quæst. J. Pub. c. 2 and 7; Martens, b. 8, c. 2, sec. 5..

(b) A liberal provision of this kind is inserted in the treaty of amity and commerce between the United States and the Republic of Colombia, which was ratified at Washington, May 27, 1825, and between the United States and the Republic of Venezuela, by the treaty of friendship and commerce in May, 1836.

(c) Tom. i. p. 567.

(d) Vattel, b. 3, c. 4, sec. 63; Azuni, part 2, c. 4, art. 2, sec. 7; Le Droit Public de l'Europe, par Mably, Euvres, tom. vi. p. 334; Burlamaqui, part 4, c. 7, sec. 6.

1 See our treaties with Peru, Guatemala, and Costa Rica, 10 U. S. Stat.

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