42 SETTLEMENT OF INTERNATIONAL DISPUTES. concerned, the first Article of which declares that "La Course est et demeure abolie 74." The effect of this Declaration will be examined in a subsequent chapter, in which La Course, or the use of Privateers, will be more fully discussed. 74 Martens, N. R. Gén. XV. p. 768. CHAPTER II. WAR AND ITS CHARACTERISTICS. War as defined by Grotius-Bynkershoek's definition-War the contention of independent political communities in the prosecution of Right-View of Grotius as to Private Warfare-Albericus Gentilis-War a necessary Alternative-Lord Bacon's view of War as the highest trial of Right-Grotius-Private Peace inconsistent with Public War-Lawful recourse to War-Offensive and Defensive War-Vattel-Grotius-Formal Declaration of War-Law of the Germanic Empire in the Twelfth Century-Law of Europe in the Fourteenth Century-Declaration of War by Heralds-at-Arms— Proclamation of War at home by Heralds-No British Declaration of War by a Herald since Queen Mary's reign-Last occasion of a Declaration of War by a Herald-at-Arms in 1657, at Copenhagen -Printed Declarations of War in the reign of Charles II-Manifestoes of War to Neutral Nations-Recall of resident Envoys— Disuse of formal Declarations of War-Last occasion of a formal Declaration of War by Great Britain in 1762-Letter of Lord Chancellor Thurlow in 1778-Object of Proclamations of War at home-Object of Manifestoes to Neutral Powers-Opinion of M. de Hautefeuille as to the necessity of a Declaration of War-A State of War de facto-Texas and Mexico-Burlamaqui's opinion-Practice of the United States of America-The maintenance of the Status ante bellum conditional-Unilateral Declaration of War sanctions reciprocal hostilities-Recall or Dismissal of resident EnvoysTreaties-Ignorance of hostilities on the part of Neutrals. defined by § 22. WAR has been defined by Grotius, at the War as outset of his work, to be the State or Condition of Grotius. parties contending by force, as such. "Status per vim certantium quâ tales sunt." Under this large Bynkershoek's definition. acceptation of the term "War" Grotius comprises every species of contention by force, not even excluding single combats, which he regards as forms of private war, and which, as being more ancient than public wars, and of a common nature, he considers should be classed under the same general head'. In adopting this terminology, Grotius admits that the term War had, prior to his time, been used for the most part to denote public as distinguished from private contentions by force, which he accounts for on the ground that the more eminent species frequently usurps to itself the name of its genus. He assigns, at the same time, as his reason for not including justice in his definition of war, that the object of his enquiry was to determine whether any war can be just, and if so, what may be called a just war; and it was therefore necessary for him to distinguish the subject War from the question which he proposed to examine respecting it. § 23. Bynkershoek has objected to the definition, which Grotius has adopted, as imperfect, although he agrees with him in considering war to be the State or Condition of parties in contention, as distinguished from an act of contention, or the contest itself. He proposes what he conceives to be a more complete definition, when he says that war is a contention, by way of force or deceit, of independent parties in the prosecution of their right. "Bellum est eorum, qui suæ potestatis sunt, juris sui persequendi causa concertatio per vim vel dolum"." In adopting this definition, Bynkershoek admits that war may exist between individual men equally as between States, but only in the case where such individual men are suæ potestatis, in other words, acknowledge no political superior. He 2 Observationes Juris Publici, L. I. c. I. 1 De Jure Belli et Pacis, L. I. C. I. § II. rejects altogether the notion of private war, as a distinct species of war, even in theory, seeing that the word private implies a political body, of which the parties in contention are respectively members and are accordingly, as such, not suæ potestatis. War therefore, according to Bynkershoek, is properly predicated only of contentions by force or deceit between parties which acknowledge no political Superior, and which cannot therefore have recourse to a common judge, in other words, between independent political bodies; for the individual man, living in a state of solitude, is an ideal person, of whom no counterpart is found in real life. Further, Bynkershoek defines the object of all war to be the prosecution of Right, either in the way of self-defence or of self-redress, and in this respect his definition is in harmony with the more complete idea of war, of which Grotius has given an outline in his preliminary chapter, when he says that no war ought to be undertaken except for the obtaining of Right, nor, when undertaken, ought it to be carried on beyond the bounds of Right and Good Faith3. contention Political ties. § 24. The more important distinction between the War the definitions, which Grotius and Bynkershoek have of Inderespectively adopted, consists in the limitation of the pendent term War, on the part of the latter writer, to the Communicontentions of parties who are suæ potestatis. War, regarded as the subject of rights and obligations, is not only such in reference to the belligerent Nations themselves, but also in reference to other Nations which take no part in the actual contention, but are said to be neutrarum partium. A state of War, when it exists between two Nations, gives to such Nations special rights, as Belligerents, both in regard 3 Prolegomena, § 26. to each other, and likewise in regard to Neutral Nations, which do not exist during a state of Peace. It would seem unreasonable therefore to hold that whilst two independent political communities are at peace with one another, and with all other independent political communities, any individual members of either community can be at war with one another, and thereby give rise to special rights and obligations on the part of the communities of which they are respectively members, both in regard to each other, and in regard to other political communities, which will be foreign to the general relations of peace which exist amongst the communities themselves. War, therefore, as the subject of special rights between the belligerent parties and likewise between the belligerent parties and neutrals, must be distinguished from War in the more extensive sense in which Grotius employs the term at the outset of his work, namely, as denoting every sort of contention by force, in contrast with a judicial proceeding. Undoubtedly," says Grotius, "the liberty of Private Grotius as Warfare, which existed before judicial tribunals were View of to Private War. 66 established, has become much restricted, yet there are cases in which that liberty still exists, namely, wherever judicial tribunals are wanting; for the law, which forbids a person to obtain that which is his right in any other way than by a judicial proceeding, ought to be equitably understood, as applying only to those cases in which there is access to a judicial tribunal." Now a judicial tribunal may be wanting either for the moment or permanently. It is wanting for the moment, as happens on all those occasions, when a judge cannot be waited for without certain danger or loss; it is permanently wanting, either de jure, as if a person be in an unoccupied place, as for instance, on the high seas, in a desert, or on an unin |