Lord it had entered into a treaty of friendship and commerce with them, and was determined effectively to protect its subjects in the enjoyment of their treaty privileges. England, under these circumstances, considered that the conduct of the French King was not merely an act of aggression against her, but a violation of the Law of Nations; and consequently that she was entitled to resent it, and make prize of French vessels, without any necessity of formally declaring war against France. That the British Government so determined to act after mature deliberation may be gathered from a letter of Lord Chancellor Thurlow's 37, in which he Letter of discusses the precedents of a Declaration of War. Chancellor "I find a doubt hath been started whether it be Thurlow, in 1778. correct to make prize or to condemn it as confiscate, and still more to distribute it to the captors, before a Declaration of War. Upon the last it is insisted, that the goods of Nations, not declared Enemies, can at most be taken as Reprisal, and detained only as pledges for satisfaction. It is said that this was done in 1754, and that no Prizes were actually condemned or distributed before Declaration of War at that period. Declaration is said to be necessary to what writers call a Solemn War, but it has been the practice of Nations in all ages to begin hostilities otherwise. What the Supreme Power of any other country may do, the King here has been in the use of doing in the matter of War against strange Nations. Therefore if you could, without trouble to yourself, order a search, I should be extremely 37 Letter of Lord Chancellor Thurlow to Philip Stephens, Esq. Secretary of the Admiralty, dated 12 August 1778, a copy of which exists in a MS. volume in the possession of the author, and Object of at home. happy to find what the course has been, especially since the Revolution in this respect, in giving orders to King's ships to take prizes, in granting commissions to Privateers, Letters of Marque and Reprisal, in proclaiming such purposes, in distributing Prizes to Captors, antecedent to Declaration of War." § 36. The object of a Proclamation of War, in the tions of War sense in which that expression is used to signify a public announcement of hostilities on the part of a Sovereign Power for the information and direction of its Subjects, as distinguished from a direct notification of hostilities made to the State against which war is to be carried on, is to fix the date from which special duties attach to the Subjects of the Belligerent Power as regards the Enemy. After war has been proclaimed, no pacific relations of whatever nature can be entertained between the respective Subjects of the belligerent Powers, except under license or convention, All trade is suspended, no contracts are legal, no debts can be enforced, and no suits can be sustained by or against an enemy before the municipal tribunals of either State. Ex natura belli commercia inter hostes cessare non est dubitandum, is the language of Bynkershoek, and Valin treats it as a question beyond all dispute in his time. But there is no absolute necessity that there should have been a Proclamation of War in order to establish the legal quality of alien enemy against a Subject of a Foreign Power. In the reign of Queen Elizabeth it was held to be sufficient to show that there was a State of War in fact between the Crown of England and Spain, and that the Spaniards were actual enemies of the Queen, 38 Quæst. Jur. Publici, L. I. c. II. 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, 1829. I. p. 162. Valin Commentaire sur l'Ordonnance de la Marine, L. III. Tit. VI. § 3. p. 457. Ed. 40 Halleck's International Law. San Francisco, 1861. p. 354. Manifestoes Powers. 41 It another Nation, so that they may take measures to warn their citizens to observe the duties of neuObject 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. 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 4 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. 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 12. 43 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 in 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, 42 Heffter, § 121. 43 Des Droits et des Devoirs des Nations Neutres. Tit. III. |