Last De claration of 26 of the Spanish Armada, although there was a State of War, after that event, between England and Spain. So likewise in the reign of Charles I, Lord Clarendon narrates how Villars, Duke of Buckingham, “made war upon France without any colour of reason, or so much as the formality of a Declaration from the King, containing the ground and provocation and end of it, according to custom and obligation in the like cases, for it was observed that the Manifesto which was published was in the Duke's own name, who went admiral and general of the Expedition.” The practice, however, of declaring war by a herald-at-arms had not entirely passed away on the continent of Europe in the early part of the seventeenth century; for we find it told by the historian of the reign of Louis XIV, that Louis XIII still War by a clung to the ancient rule, and sent a herald-at-arms to Brussels, in 1635, to declare war against Spain 27. This is cited by many writers as the last known instance of the kind; but there appears to have been one later instance in 1657, when Sweden declared war against Denmark 28 by a herald-at-arms sent to Copenhagen. Herald-at Arms in 1657. Printed De clarations of § 33. It appears from a passage in Chief-Justice War in the Hale's "Pleas of the Crown"29, that in the reign Charles II. of Charles II the solemn form of declaring war reign of then in use was by a printed declaration, such as that monarch issued against the Dutch in 1671. The institution of permanent embassies resident in the capital cities of Europe, which dates from the ministry of Cardinal Richelieu, could not but 26 Clarendon's History, Vol. I. $267. Holberg Danmarks Rige's p. 71. ed. Oxford 1826. Hist. Tom. III. p. 241. 27 Voltaire Siècle de Louis XIV. c. II. 28 Marten's Précis, L. VIII. 29 Pleas of the Crown. I. P. 162. tend very much to modify the earlier forms of international intercourse, more particularly in regard to the course of proceedings introductory to war. Further, during the Thirty Years' War, the Law of Nations underwent a rapid development, for the stormy conflicts resulting from the union of religious with political antipathies consequent on the Reformation, and which had been confined in the sixteenth century to single states, convulsed the entire political system of Europe in the seventeenth century, and the Northern Powers of Europe came to take a part in the disputes of Central and Southern Europe. War, therefore, whenever it broke forth, was attended by more general consequences; and hence it became expedient for Nations which were about to become belligerents to give notice of their intention to other Nations, so that the latter might, if they did not side with either party, know from what period they should observe the duties of neutrality. Hence originated a practice for a belligerent Nation 30 to issue Manifestoes to other Na- Manifestoes tions, to make known the fact that it had taken Neutral up arms. Grotius speaks of this as an established practice in his time; and Vattel considers that a belligerent Power is bound to publish a Manifesto to neutral Powers, in order to obviate all difficulties that may otherwise arise from the subjects of the latter Powers carrying to a belligerent any supplies in the nature of contraband of war31, and so incurring the penalty of their confiscation, if captured by his adversary. 30 Et has ob causas solent a bellum gerentibus publicæ significationes fieri ad alios populos, tum ut de jure causæ, tum etiam ut de spe probabili juris ex- 31 L. III. c. 2. § 64. of War to Nations. Recall of Resident Envoys. § 34. It is usual for a Nation which contemplates the necessity of making war upon another Nation to apprize the other Nation of its sense of an injury having been inflicted upon it or of a right having been denied to it through the medium of its Resident Envoy; and if no satisfaction should be offered, to recall its Resident Mission. This step, however, although it may imply the cessation of friendly relations, does not necessarily constitute a state of war between two Nations 32. A Nation may even go further, and authorise reprisals to be made against another Nation; and if no other step should be taken on either side, the persons and property seized by way of reprisals may be detained as pledges for satisfaction without any war necessarily resulting thereupon. Thus, in 1739, on occasion of Spain having failed to pay a sum of money within a certain time specified in a treaty between the Crowns of Spain and of England, the King of England granted letters of marque and reprisal against Spain, and Mr. Keene, the British Minister at Madrid, was instructed to declare to the Court of Spain that his master, although he had permitted his subjects to make reprisals, would not be understood to have broken the peace, and that this permission would be recalled as soon as his Catholic Majesty should be disposed to make the satisfaction which had been so justly demanded. His Catholic Majesty, however, having ordered all the British ships in the harbour of Spain to be seized and detained, the King of England would keep measures with him no longer, but denounced war against him. 32 Thus France and Great ensue. 33 Smollett's History of England, Vol. III. p. 27. In such a case as this, a right of hostilities, as between the two Nations, accrued to England at once upon the original breach of a treaty on the part of Spain; but the exercise of that right was suspended. The character of the acts of reprisal continued to be ambiguous, until war was declared. After war had been once declared, it reflected back upon the original breach of a treaty an undoubted character of hostility, and the property seized by way of reprisal became subject to condemnation, as the property of enemies ab initio 35. Formal De of War. 35. It may be taken to be the established Disuse of practice of European Nations, since the peace of clarations Paris (anno 1763), to dispense with any formal Declaration of War between the parties, and to attach all the legitimate consequences of war to a state of hostilities, which has been duly recognised and explicitly announced by a domestic Manifesto or State paper. The last occasion on which England had recourse to a formal Declaration of War was on 2 January 1762, when she declared war against Spain, and by that Declaration authorised and required all the King's subjects to do and execute acts of hostility against the King of Spain, his vassals and subjects, whilst she also advertised all 34 From a letter addressed by Lord Chancellor Thurlow to the King's Advocate General, on 12 December 1778, a MS. copy of which is in the author's possession, it appears that there had been six declarations of war on the part of the King of England since the Revolution of 1688; namely, that of 7 May 1689, against France; 4 May 1702, against France and Spain; 16 Dec. 1718, against Spain; 19 October 1739, against Spain; PART II. 17 May 1756, against France; 35 Upon this principle Eng- F not 36 other persons, of what Nation soever, not to transport or carry any soldiers, arms, powder, ammunition, or other contraband goods, to any of the territories or dependencies of the King of Spain. On the occasion of the next following war between England and France, in 1778, the first public act of the British Government was to recall its ambassador from Paris, and to lay an embargo upon all French vessels in British ports, immediately upon receiving a declaration in writing from the French ambassador in London, that the French King had entered into a treaty of friendship and commerce with the United States of North America, " as a body of States, which had been in the full possession of independence since 4 July 1776," and that he was prepared to maintain effectively his treaty rights and the honour of his flag. France thereupon recalled her ambassador from the Court of St. James, and the French Mediterranean fleet having sailed to North America, a series of engagements took place between French and English vessels, although no Declaration of War had been issued on either side. Meanwhile the British Channel fleet, under Admiral Keppel, came into collision with some French frigates, and the two Nations drifted into open war. The occasion of this war was somewhat exceptional, being the first instance of an Established Power recognising formally the independence of the revolted subjects of another Established Power with which it was at peace, and at the same time, when it announced its recognition of their independence, declaring that 36 This Declaration of 15 March 1778 was delivered by the Marquis de Noailles, the Ambassador of France in London, to Lord Weymouth, the British Secretary of State for Foreign Affairs. It will be found in the Nouvelles Causes Célébres du Droit des Gens, par le Baron Ch. de Martens, Tom. I. p. 406. |