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in order to disable a Spanish Subject from suing a British Subject in a British court in an action of debt. So likewise in France it was ruled by a court of competent jurisdiction, on 13 May 1757, that there was a State of War between France and England on 29 October 1755, by reason of the acts of hostility committed by English cruisers against French vessels, although war was not declared by England before 17 May 175639. So likewise the war between the United States of America and Mexico, in 1846, was commenced by a conflict of armed forces in the disputed territory, and without any declaration on either side; and the Congress of the United States passed an Act subsequently recognising the existence of the war. A State of War may thus exist between two countries as respects the mutual rights and obligations of the citizens of each country in relation to one another, without any proclamation or indication thereof, or other formal matter of record to prove its commencement.

$37. It has been observed that the right of hostilities, as between two belligerent Nations, does not result from any formal Declaration of War, but from the aggression of one Nation upon the independence of the other. The obligation of neutrality, on the other hand, as between the respective belligerents and other Nations, does not arise, except upon notification from one or other belligerent that he is at war with his adversary. A Nation is bound. to bring to the knowledge of other Nations, with which it is at amity, the fact of its being obliged to take up arms to maintain its rights against

39 Hale's Pleas of the Crown, I. p. 162. Valin Commentaire sur l'Ordonnance de la Marine, L. III. Tit. VI. § 3. p. 457. Ed.

1829.

40 Halleck's International Law. San Francisco, 1861. p. 354.

Manifestoes

Powers.

another Nation, so that they may take measures to warn their citizens to observe the duties of neu

41

Object of trality. For this purpose Manifestoes are usually to Neutral published by the belligerent Powers at the commencement of the war, which set forth the grounds upon which they feel justified in taking up arms. After that a Manifesto, which always implies, if it does not in terms contain, a declaration of war, has been circulated by the diplomatic Envoys of the belligerent State at the Courts of the various Neutral Powers, it will be no longer competent for the Subjects of those Powers to plead their ignorance of a State of War between the belligerents. A Manifesto may be regarded as an Appeal or Protest addressed by an injured Nation to the Community of Nations. It ought to set forth in dignified language the cause of complaint and the efforts to obtain redress; it should speak with a certain reserve of the injuries which the Nation has undergone, and with a certain moderation of the satisfaction which it seeks for such injuries. It ought to set forth the facts without colour or animosity, and state the principles of Public Law, upon which it relies to maintain the justice of its cause. It should speak with respect of its adversary as its equal; and should avoid embittering the dispute by offensive expressions. In a word, it should avow regret that ancient friends should have become temporary adversaries, and express a hope of a sincere reconciliation after the

41 An "Exposé des motifs," or a "Mémoire Justificatif," as the case may be, is sometimes published; but this is a totally distinct paper from a Manifesto. The French Government published a paper under the former title in 1779, to which the Eng

lish Government published an answer under the latter title, from the pen of the historian Gibbon. They will be found in Ch. de Martens. Nouvelles Causes Célébres du Droit des Gens. I. p. 425 & 436.

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dispute has been adjusted. The Homeric heroes," says Vattel, "called each other before battle 'dog' and drunkard.'" The Emperors and Popes of the middle ages treated each other with as little delicacy. But we may congratulate our age on the superior gentleness and humanity of its manners, and not treat as vain politeness those courtesies which are productive of real and substantial effects 2.

of M. de

§ 38. Amongst modern publicists M. de Haute- Opinion feuille stands alone in maintaining that war is not Hauteregularly commenced as regards the adverse Nation, feuille. except after a direct Declaration of War, although it may be regularly commenced in regard to Nations, which do not take part in the hostilities, after the diplomatic circulation of a Manifesto. He admits that Vattel and De Rayneval, who have maintained the necessity of a Declaration as contrasted with the looser doctrines of Bynkershoek, Klüber, and De Martens, allow that the diplomatic circulation of a Manifesto is in effect equivalent to a direct Declaration of War; but he persists in holding that war, and more particularly a maritime war, requires to be legalised by a special Declaration made to the adversary. Let it be considered for a moment to what conclusions this position leads. If the character of all acts committed before a Declaration of War is to be measured by the same standard which applies to a state of Peace, then acts of violence committed under such circumstances on the high seas will be acts of piracy, and those who have committed them may be treated as hostes humani generis; but no Courts of Admiralty any country have ever ventured to pronounce the acts of parties, who are belligerents de facto before a Declaration of War, to be piratical acts. Further,

in

42 Heffter, § 121.

43 Des Droits et des Devoirs

des Nations Neutres. Tit. III.

c. I. § 11. p. 139. ed. 1858.

A State of War

Mexico.

where there is a State of War de facto between de facto. parties, which cannot be preceded by a Declaration, as for instance in the extreme case of a Civil War, where part of a Nation has erected a distinct and separate government, the existence of a State of War, under such circumstances, is of necessity recognised by foreign Powers, although they may not have acknowledged the political independence of the new Government; and foreign Courts administering the Law of Nations have uniformly treated each party as a belligerent, in reference to all acts asserted by it to have been done jure Texas and belli. Thus the existence of a civil war between the people of Texas and the authorities and people of the other Mexican States was recognised by the President of the United States, in the month of November 1835. Official notice of this fact, and of the President's intention to preserve the neutrality of the United States, was soon after given to the Mexican Government; and when the armed schooner Invincible, sailing under the flag of the newly constituted Republic of Texas, captured in the month of April 1836 the American brig Packet, on the alleged ground that she was laden with a cargo contraband of war, destined for the use of the Mexican army, the Attorney General of the United States formally advised the President, that the charge of Piracy against the crew of the Texian brig could not be sustained".

Burlamaqui's opinion.

Burlamaqui, on the other hand, maintains with more reason, both as regards the real object of a Declaration of War, and as regards the actual practice of Nations, that "the formalities observed by different Nations in Declarations of War are arbitrary.

44 Opinions of the Attorneys- Vol. II. p. 1066. General of the United States,

45 Droit Naturel, Pt. IV. c. 4.

It is immaterial what the form may be, so that the opposing Sovereign does not remain in ignorance of it." Thus, inasmuch as according to the Constitution of the United States of America, it belongs to the province of the Legislative as distinguished from the Executive Government to declare war, a war cannot be regularly commenced by the Federal Union without an Act of Congress. The passing of such an Act by Congress is accordingly held by the United States to be a formal official notice to all the world, which is entitled to the same international respect as is paid to a Declaration of War, or a Manifesto, when it falls within the proper province of the Executive Government of a Monarchical State to issue such documents. Accordingly the United States Practice of commenced active hostilities against Great Britain in States of 1812, as soon as the Act of Congress had been America. passed, without waiting to communicate to the British Government any notice of its intentions, and without issuing any Manifesto setting forth the motives for commencing war.

§ 39. It is undoubtedly of importance that there should be a well defined boundary line to mark the commencement of a State of War between two Nations, so that those acts which are to be considered as the effects of war may be readily distinguished from those which each Nation is entitled to regard as injuries, and for which reparation may be demanded, when terms of Peace have to be settled. But it is not always easy, as a matter of fact, to draw such a line. As long as it was the practice for a Nation to make a formal Declaration of War before commencing active hostilities, nothing was more easy than to draw a line between acts done before and acts done after the Declaration of War; 46 Kent's Commentaries, Vol. I. § 55.

the United

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