disputes and difficulties as to the true date of the legal commencement of War. As War puts an end to all amicable intercourse between the Subjects of the belligerent Powers, and abrogates all antecedent treaty engagements, it seems reasonable that its legal commencement should be marked by the formal cessation of amicable intercourse between the Governments. In the absence of any special treaty arrangements on this subject, the general rule as regards belligerents seems to be this, that a State of War may exist between them without any Declaration of War on either side. It may begin with mutual hostilities 55, and the legitimate consequences of war will ensue from the immediate commencement of such hostilities. But with regard to other Nations, they are not charged with the duties of neutrality until a State of War between the belligerents has been officially announced to them, or until they have otherwise acquired a positive knowledge of its existence. War may exist notoriously 56, in which case it is not competent for a neutral Power to refuse to recognise its existence. On the other hand if a third Ignorance party is bond fide ignorant of the existence of a war ties on the between two other parties, there is no foundation in Neutrals. his case for the duties which the Law of Nations attaches to the Neutral Character, for he is unconscious that he has any occasion to act in that character. Under the circumstances of such bond fide ignorance of the existence of war between Great Britain and France, two Spanish vessels resisted the exercise of the right of visitation and search by a British cruiser 57. Notwithstanding such resistance on

55 Sir W. Scott in the "Eliza Anne." I Dodson, p. 247.

56 La Nuestra Senora de la Caridad. 4 Wheaton, p. 497.

57 The San Juan Baptista and La Purissima Conception. 5 Robinson, p. 34.

of hostili

part of

their part, which is in itself an offence of a very heinous character, Lord Stowell directed the Spanish vessels to be released, on the ground that the masters of them were unconscious that they had any neutral duties to perform.

CHAPTER III.

COMMENCEMENT OF WAR.

Effect of War upon individuals - Natural born and adopted citizens-Inhibition of intercourse with the enemy-Recall of natural born subjects-Commission to carry on hostilitiesEnemy-subjects within the territory of a belligerent-Treaties of Commerce-Enemy-property within the territory of a belligerentMilder practice in modern times-Obligation of good faithAncient practice of Provisional Embargo-Enemy-subjects resident in the territory of a belligent-Enemy-subjects in transitu-Detention of British subjects in France by the First Consul in 1803Modern practice not to detain enemy-subjects-Debts due to enemysubjects-Opinion of Mr. Justice Story, Mr. Chancellor Kent, Vattel, and Bynkershoek-Judgment of Lord Ellenborough, in Wolff v. Oxholm-Wheaton-Suspension of Commercial ContractsDebts due to an Enemy-Sovereign-Conduct of Prussia in regard to the Silesian Loan-Conduct of Great Britain in regard to the Russian-Dutch Loan-Embargo of enemy-property afloat within the territory of a belligerent-Conduct of the Allied Powers at the commencement of the war against Russia in 1854-Russian reciprocity-Immovable property of enemy-subjects within the territory of a belligerent.

War upon

§ 42. A SOLEMN Declaration of War (diffidatio) Effect of purported to be a renunciation on the part of the individuals. Sovereign, who declared war, of all international obligations towards the Sovereign against whom war was declared, so that no peaceful relations of any kind could thenceforth be entertained between them, except under express convention. The existence of

mutual hostilities of such a nature, as to constitute de facto a State of War between two Sovereign Powers, is attended with analogous consequences in suspending all peaceful intercourse between the political communities, over which they are Sovereigns, and in constituting all the individual members of the one Nation enemies of the individual members of the other Nation. As Private War is inconsistent with Public Peace, so Private Peace cannot coexist with Public War. "In former times, and especially in small states," writes Vattel, "whenever war was declared, every man became a soldier; the entire people took up arms, and engaged in the war; after a short time a selection came to be made, and armies were formed of picked men, and the rest of the people continued to pursue their usual avocations. At present the use of regular troops is everywhere established, but principally in the great States. The Public Power raises soldiers, distributes them in different corps under the authority of chiefs and other officers, and keeps them on foot as long as it thinks necessary; as every citizen or subject is bound to serve the State, the Sovereign has a right to enroll those whom he pleases in case of necessity." Accordingly as every member of a political community is under an equal obligation to serve and defend the State, as far as he is capable, no individual is exempt by the Law of Nations from taking up arms in its defence. It is, however, optional with every community to organise itself in the manner, which it thinks most convenient for its own defence in time of war. Hence the obligation of each individual member of a political community to take an active part in any war, in which the community is engaged, will depend upon the Constitutional Law of the community. Amongst some

I Vattel, Droit des Gens, L. II. c. 2. § 9.

nations there is a legal obligation upon every citizen under a certain age to serve the State in arms, and lot decides upon whom the actual burden of military duty shall devolve. Amongst other Nations the profession of arms is voluntary, like the profession of letters, with this difference however, that the Nation undertakes to pay those of its citizens who choose to enroll themselves in its standing army, as it is just that those who do not serve should pay their defenders. There have been on the other hand instances where Nations have been content to exempt their own citizens from active military service, and to entrust their defence to a regular army of foreign origin serving them for pay. Such were the Swiss regiments in the service of Spain and of Naples, and such were the Irish regiments in the service of the Emperor, and the Scotch regiments in the service of Sweden and of France. But in all such cases, if a soldier of foreign origin takes service in the standing army of a Nation, he becomes for the time of his service a member de facto of the Nation for all belligerent purposes. No person is entitled to object to his so taking service, but the Sovereign Prince to whom he owes similar service by virtue of his allegiance, as a natural born subject; and if he has entered into the military service of a foreign Power without the consent of his Sovereign, he will have offended indeed against the laws of his native country, and may disentitle himself to enjoy the privileges of a citizen, if he should return to that country. But by the Law of Nations every man is free to attach himself to any political community which may be disposed to admit him to membership, if he finds it to be for his advantage. He may make its cause his own, and espouse its quarrels ; 2 Vattel, L. III. c. 2. § 13.