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" Burla maqui'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. 4+ Opinions of the AttorneysGeneral of the United States, Vol. II. p. 1066. 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 ante bellum and it was not unusual to stipulate in Treaties of Peace that all places and property seized before the Declaration of War should be restored. The Status The Status ante bellum would, in such a case, be satisfied by ambiguous. returning to the state of possession before war had been declared. But after Nations came to engage in active hostilities before either of them had made any formal Declaration of War, the Status ante bellum would not be secured by stipulating that matters should be replaced in the state in which they were before war was declared. Thus the war between Great Britain and France, which was terminated by the Peace of Aix-la-Chapelle, may be said to have commenced with the battle of Dettingen, on 26 June 1743, which was fought between the French and English armies, the latter being commanded by the King in person, or at least by the sea fight on 9 February 1744, off Toulon, between the English fleet and the combined French and Spanish fleets. Yet no Declaration of War was made by France before 20 March 1744, nor by England until 29 March 1744, when she issued a Counter-Declaration of War. Accordingly we find that it was stipulated in the treaty of Aix-la-Chapelle (18 October 1748) that "all conquests made since the commencement of the present war shall be restored, as well in Europe as in the East and West Indies, in the state in which they are at present." Under such an agreement the Status ante bellum would only be satisfied by either party giving up all its conquests. 49 47 Ante denuntiationem belli. 48 49 Vattel has fallen into an inaccuracy in speaking of this provision of the treaty of Aixla-Chapelle, as if it referred to all prizes made before the de48 Wenck. Codex Jur. Gent. claration of war. L. III. § 56. Vol. II. p. 325. Declaration reciprocal § 40. When one Nation declares war against an- Unilateral other Nation, writes Grotius, the Declaration becomes of War reciprocal 50. Upon this principle Lord Stowell held sanctions that a Declaration of War on the part of Sweden hostilities. against Great Britain was not a mere challenge on its part to be accepted or refused by the other country, but proved the existence of actual hostilities on one side at least, and put the other party also into a State of War, although it might think proper to act on the defensive only. Cases have occurred in which a hostile demonstration has been held to amount to a virtual declaration of war, and to be a justification for having recourse to arms without any formal Declaration of War. Such seems to have been the justification under which the British fleet, commanded by Admiral Byng, on II August 1718, destroyed the Spanish fleet at Passaro. The English ambassador at Madrid had previously warned the Spanish Prime Minister, Cardinal Alberoni, that if the threatened invasion of Sicily was not abandoned, England would oppose Spain with all her power, and had communicated to him the orders, which the English Admiral had received, to hinder and obstruct the invasion. Alberoni in reply sent a note to the effect, that the English Admiral might execute the orders, which he had received from the King his master. In this case, if the English Admiral had waited for his Government to issue a formal Declaration of War, Spain would have been enabled to destroy the ally, whom the English fleet had been sent to protect. The necessity, therefore, of the case sanctioned immediate action, but the answer itself of Alberoni, in accepting Recall or Envoys. the alternative, might be regarded as a virtual declaration of war. War was in fact commenced from the battle of Passaro, although England did not formally declare war against Spain until December 17, 1718; but when the treaty of 52 Madrid (June 31, 1721) came to be negotiated, it was provided that all the vessels and effects seized by either Spain or England, either before or after the Declaration of War, should be restored. § 41. The recall or dismissal of a resident Envoy is of resident generally considered as equivalent to a declaration of war, although we find occasional instances where friendly relations have been suspended by that event, without war resulting therefrom. In certain treaties of commerce provision has been made that a rupture of peaceful relations shall not be held to exist, until after the recall or dismissal of the respective Envoys or Ministers of the contracting parties. Such a provision is found in the Treaty of Rio Janeiro 53, between Great Britain and Portugal; and in the Treaty of Rio Janeiro, between Great Britain and Brazil; and in Treaties concluded between Brazil and France in 1826, Brazil and Prussia in 1827, and Brazil and Denmark in 1828. "If there should arise any misunderstanding, breach of friendship, or rupture, between the two Crowns (which God forbid), the rupture shall not be deemed to exist until after the recall or departure of their respective diplomatic agents," is the provision which is found in these treaties. This is a very wise and reasonable arrangement, which if it should be ever generally adopted, would prevent all Treaties. 52 Schmauss, Corpus Jur. Gent. XXXI. Martens, N. R. III. p. Academicum, p. 2143. 53 Treaty of Commerce between Great Britain and Portugal, 19th February 1816. Art. 213. 54 Treaty of 17 August 1827. Martens, N. R. VII. p. 479. |