every possible formality, and, as we have seen, with an unexampled leniency towards the goods and persons of the subjects of the enemy. The instances which have been adduced are sufficient in point of number and magnitude, to show that so far as the practice of nations is concerned, a precedent declaration of War is not ex debito justitiæ inter Gentes. LXV. We have now examined, upon this question of the necessity of a formal declaration of War, two of the acknowledged sources of International Law, namely, the Authority of Jurists, and the Practice of Nations; and if we consider the Reason of the Thing,(o) another and principal source of this jurisprudence, it will be found to support the view which has been taken in the foregoing pages. For what does the reason of the thing require as a preliminary to *actual war? Not [*95] that the party compelled to seek redress should afford his enemy, the wrong-doer, an opportunity of strengthening himself in his injustice ;(p) and even, taking the other supposition, that both parties conceived themselves to be fully in the right, no analogy of private jurisprudence suggests that the one party should concede to the other any advantage in the law suit, whether it be that of evading the tribunal or of mending his case; the truth is, that good faith and the general interests of the Society of States require that when one member of it is about to exchange friendly for belligerent relations with another, he should not do so until fair and reasonable notice of his intentions has been communicated, "et quidem (to adopt the words of Grotius) ita decretum publicè ut ejus rei significatio ab alterâ partium alteri facta sit."(q) The channel of communication is, after all, of little importance, whether it be through a demand accompanied by a direct intimation that upon its refusal recourse would be had to War; or whether that intimation may be indirectly suggested by the nature of the demand itself, and the surrounding circumstances of the case, among which cir cumstances considerable weight must be ascribed to the withdrawal of the ambassador.(?) (0) Vide ante, vol. i. c. iii. (p) And so Vattel, who is sometimes cited as an authority for the necessity of the declaration, observes:-"Le droit des gens n'impose point l'obligation de déclarer la guerre pour laisser à l'ennemi le temps de se préparer à une injuste défensive. Il est donc permis de faire sa déclaration seulement lorsque l'on est arrivé sur la portière avec une armée, et même après que l'on est entré dans les terres de l'ennemi, et que l'on y a occupé un poste avantageux, toutefois avant que de commettre aucune hostilité. Car de cette manière, on pourvoit à sa propre sûreté, et on atteint également le but de la déclaration de guerre, qui est de donner encore à un injuste adversaire le moyen de rentrer sérieusement en luimême, et d'éviter les horreurs de la guerre, en faisant justice. Le généreux Henry IV. en usa de cette manière envers Charles-Emmanuel, duc de Savoie, qui avait lassé sa patience par des négociations vaines et frauduleuses."-L. iii. c. iv. s. 60. (9) L. iii. 3-5. (r) De Rayneval insists on the necessity of a declaration, but he says: "Quant à la forme des déclarations de guerre, elle a varié: l'essentiel est qu'elles soient connues, ou censées connues, par l'ennemi avant les hostilités. Elle doit être notifiée aux puissances neutres.”—Instit. de la Nature et des Gens, t. ii. 1. iii. c. ii. s. 2. *And this is, after all, the conclusion to which a careful in vestigation of all the passages upon the subject in Grotius(s) [*96] and Vattel would lead us; for we must always distinguish between the necessity of a declaration of War, previous to the commencement of hostilities, and the necessity of some public proclamation or manifesto, accompanying hostilities when commenced; such a manifesto might perhaps well satisfy the indictio or the denuntiatio of Grotius, but at all events it is imperative, upon two grounds: first, in order that the other members of the society of States may be apprized of the reasons which have necessitated a recourse to War, that is, to a state of things which must greatly affect their rights and their duties, "Interpellatio requiritur quâ constet alio modo fieri fieri nequire ut nostrum aut nobis debitum consequamur;" and, secondly, in order that the subjects of the belligerents may be duly acquainted with an event which brings with it new obligations on their part towards their Government, "exterum jure gentium ad effectus illos peculiares omnibus casibus requiritur denuntiatio, non utrimque sed, ab *alterâ partium." Barbeyrac conceives that Grotius intends by these words "the right of appropriating [*97] what is captured from the enemy," which right, as he truly observes, cannot, as a matter of International Law, be affected by the fact of a declaration. And here must be repeated an observation made in an earlier part of this work, with respect to one great advantage to the general commonwealth of nations which flows from these manifestoes, namely, that they frequently contain, not only expositions of the causes which have led to this result, but also a defence of the conduct of the Government, founded upon a reference to the principals of International Law, whether in declaring an offensive or a defensive War. These public documents furnish, at all events, decisive evidence against any State which afterwards departs from the principles which it has thus deliberately and solemnly invoked; and in every case they clearly recognize the fact, that a system of law does exist, which ought to regulate and control the international relations of every State.(t) It should be observed, before this subject be dismissed, that, according to Vattel, (u) the War might lawfully commence immediately after (8) Grotius says: "Ut bellum solenne sit ex jure gentium duo requiruntur; primùm ut geratur utrimque auctore eo, qui summam potestatem habeat in civitate; deinde ut ritus quidem adsint de quibus agemus in suo loco."-L. i. 3-4. And yet in suo loco, he describes no particular ceremonial, and expressly rejects the notion of their being any necessity for observing the ceremonies of the Fecial Law, or, indeed, for a bellum solenne at all, which, indeed, had fallen in desuetude long before the passages were inserted in the Digest. Grotius goes on to say: "Sed ut justum hoc significatu non sufficit inter summas utrimque potestates geri, sed oportet, ut audivimus, ut et publicè decretum sit et quidem ita decretum, ut ejus rei sigificatio ab alterâ partium alteri facta sit, unde promulgata prœlis dixit Ennius."-L. iii. 3-5. He then cites Cicero, as saying, "Nullum bellum esse justum nisi quod aut rebus repetitis, aut denuntiatum ante sit et indictum." This is exactly the doctrine in the text: War must be after satisfaction demanded-rebus repetitis. And Grotius says that when the War is waged to repel aggression or to repel an actual offender, "nulla requiritur denuntiatio."-L. iii. c. 3, 6. (t) Vide ante, vol. i. p. 50. (u) "Comme il est possible que la crainte présente de nos armes fasse impression the declaration,-a concession which reduces the supposed [*98] necessity of it to a practical absurdity. If a State may march an army to the frontiers of a State, declare War, and enter the borders of the State the next minute, no one object of a declaration is attained which is not equally attained by a promulgation at home, or by any other means of giving notice of hostile intentions: and here Bynkershoek's(v) question must be answered, "quid enim a vi distat negata petitio?" The refusal sufficiently puts the refusing State upon its guard. LXVI. It remains to notice the doctrine of the Public Law of England upon this question. Lord Chief Justice Hale, after speaking of the ceremonies attendant on a Solemn Law, observes, "whether these handsome methods be observed or not, yet if de facto there be a War between princes, they and their subjects are in a state of hostility, and they are in the condition of enemies (hostes) to each other; but now for the most part these ancient solemnities are antiquated."(w) The learned judge goes on to say that "a general War is of two kinds: bellum solemniter denuntiatum, or bellum non solemniter denuntiatum. The former sort of War is when War is solemnly declared or proclaimed by our king against another prince or State; thus after the pacification between the king and the Dutch at Breda, upon new injuries done to us by the Dutch, the king by his printed declaration, 1671, declared War against them; and this is the most formal solemnity of a War that is now in use. "A War that is non solemniter denuntiatum is, when two nations slip suddenly into a War without any solemnity; and this ordinarily happeneth among us. The first Dutch War was a real War, and yet it began barely upon general letters of marque. Again, if a foreign prince invades our coast, or sets upon the king's navy at sea, hereupon, a real, though not a solemn War, may, and hath formerly arisen, and [*99] *therefore, to prove a nation to be in enmity to England, or to prove a person to be an alien enemy, there is no necessity of showing any War proclaimed, but it may be averred, and so put upon trial by the country, whether there was a War or not; and therefore p. 31 Eliz. in Justice Owen's Reports, (x) in an action of debt, the defendant pleaded sur l'esprit de notre adversaire, et l'oblige à nous rendre justice, nous devons encore ce ménagement à l'humanité, et surtout au sang et au repos des sujets, de déclarer à cette nation injuste, ou à son conducteur, que nous allons enfin recourir au dernier remède, et employer la force ouverte pour le mettre à la raison. C'est ce qu'on appelle déclarer la guerre.”—L. iii. c. iv. s. 51. And to this he adds, in a subsequent passage: "Il faut que la déclaration de guerre soit connue de celui à qui elle s'adresse. C'est tout ce qu'exige le droit des gens naturel. Cependant, ci la coutume y a introduit quelques formalités, les nations qui, en adoptant la coutume, ont donné à ces formalités, un consentement tacite, sont obligées de les observer, tant qu'elles n'y ont pas renoncé publiquement. Autrefois les puissances de l'Europe envoyaient des hérauts ou des ambassadeurs pour déclarer la guerre; aujourd'hui on se contente de la faire publier dans la capitale, dans les principales villes, ou sur la frontière; on répand des manifestes, et la communication, devenue si prompte et si facile depuis l'établissement des postes, en porte bientôt la nouvelle de tous côtés."-L. iii. c. iv. s. 55. (v) Ubi suprà. (x) Owen, 45. (w) Hale's Pleas of the Crown, vol. i. p. 162. that the plaintiff was an alien, born in Gaunt under the obedience of the King of Spain, enemy of the queen, the plea was ruled good, though he showed not that any War was proclaimed between the two realms; and according is the pleading, 7 E. 4, 13. Rastel's Entries, Trespass per Alien.(y) "And in very deed there was a state of War between the Crowns of England and Spain, and the Spaniards were actual enemies, especially after the attempt of invasion in 88, by the Spanish Armada, and yet there was no War declared or proclaimed between the two crowns, as appears by Camden, sub anno 31,(z) ibidem, p. 404, et ibidem, p. 466;(a) so that a state of War may be between two kingdoms without any proclamation or indication thereof, or other matter of record to prove it. And therefore in the case in question touching treason, it shall upon the trial be inquired by the jury, whether the person, to whom the party indicated adhered, were an enemy or not, and, in order to that whether there were a War between the King of England and that. other Prince whereunto the party adheres. This is purely a question of fact, and triable by the jury, and accordingly is the book 19 E. 4, 6; and the reason is plain, because it may fall out, that though there were a league between the King of England and a foreign Prince, yet the War may be begun by the foreign Prince. Again, suppose we, that the King of England and the King of France be in league, and no breach thereof between the two Kings, yet if a subject born of the King [*100] of France makes War upon the King of England, a subject of the King of England adhering to him is a traitor within this law, and yet the Frenchman that made the War is not a traitor but an enemy, and shall be dealt with as an enemy by martial law, if taken; this was the case of the Duke of Norfolk adhering to the Lord Herise, a subject of the King of Scots, in amity with Queen Elizabeth, that made an actual invasion upon England without the King's commission :(b) so that an enemy extends further than a King or State in enmity, namely, an alien coming into England in hostility."(c) Mr. Justice Blackstone, after commenting upon the rule of the Roman Law, (d) which distinguishes enemies from robbers, and upon the reasoning of Grotious with respect to a declaration of War, goes on to say, "So that, in order to make a War completely effectual, it is necessary with us in England that it be publicly declared and duly proclaimed by (y) Rastel's Ent., pp. 605, d., 252, b. (z) Viz. 1588. (a) Sub anno 1592. (b) M. 13 & 14 Elizabeth, Co. P. C., p. 11. Camden's Elizabeth, sub anno 1571, and also 1572, in principio. 14 Elizabeth, p. 175, and the case of Perkin Warbeck, a Frenchman, 7 Coke's Reports. Calvin's case, 6 Dyer's Reports, p. 145, n. (a). Sherlys's case, 7 Coke. Calvin's case, ib. 6, n. (a). Hale, pp. 163-4. (d) "Hostes sunt, quibus bellum publicè populus Romanus decrevit, vel ipsi populo Romano; ceteri latrunculi vel prædones appellantur. Et ideo qui a latronibus captus est, servus latronum non est, nec postliminium illi necessarium est. Ab hostibus autem captus, ut puta a Germanis et Parthis, et servus est hostium, et postliminio statum pristinum recuperat."-Dig., xlix. t. xv. s. 24. "Hostes hi sunt, qui nobis, aut quibus nos publicè bellum decrevimus; cæteri latrones aut prædones sunt.-Ib., L. t. xvi. s. 118. the sovereign's authority; and then all parts of both the contending nations, from the highest to the lowest, are bound by it."(e) *The English Courts have holden that they will take judicial [*101] notice that a War exists between this country and a foreign State, such War having been recognized in different Acts of Parliament; and, therefore, that an allegation to this effect need not be proved.(ƒ) The English Courts have also holden that the public acts of Government, and acts by the king in his political capacity, are commonly announced in the Gazette, published by the authority of the crown; and of such acts the Gazette is admitted in Courts of Justice to be good evidence. A proclamation for reprisals, published in the Gazette, is evidence of an existing War. Proclamations for a public peace, or for the performance of a quarantine, and any acts done by or to the king in his regal character, may be proved in this manner; and upon the same principle, articles of War, purporting to be printed by the king's printer, are allowed to be evidence of such articles.(g) In the case of the Nayade, which has been already cited, (h) Lord Stowell decided that War might exist, so far as the rights of a third State were concerned, between two other States without any formal declaration; the point is perhaps not so clear when the question is between two States, one of which only has declared War, and of which declaration the other State has taken no public cognizance. This is a question rather of Public than International Law, but it should be mentioned that in a subsequent case in 1812, in which a question arose about the capture of a Swedish vessel by a British ship, Lord Stowell observed-The point on which the captors rely for condemnation in the present case is, the legal incapacity of the claimants in their real character to carry on the trade in which they had engaged. What was the relative situation of British and Swedish subjects at the time when this capture took place? Sweden had *issued a declaration of War [*102] against this country, but that had not been echoed by any coun ter-declaration on the part of Great Britain; neither had the British Government caused any notification to be made to its own subjects respecting the fact of the Swedish proclamation. It might, perhaps, be a question of some nicety, to determine how far this unilateral declaration, not acted upon or even notified to them by the Government of their own country, would affect the right of British subjects to carry on their accustomed intercourse with the ports of Sweden."(i) [*103] *CHAPTER VI. HOW WAR AFFECTS THE RELATIONS OF ALL STATES. LXVII. WAR effects a change in the mutual relations of all States; (e) Commentaries on the Laws of England, b. i. c. vii. s. 3. (f) Rex v. Roberts & others, 1 Campbell's Reports, 399. (g) Russell on Crimes, vol. ii. p. 805. (i) The Success, 1 Dodson's Adm. Rep. 133. (h) Vide ante, 76. |