coast for the purpose of committing depredations, and they might retake an American vessel captured by such an armed vessel. This statute is a fair illustration of the class of laws enacted at this time; they directed suspension of commercial relations until the end of the next session of Congress, not indefinitely (June 13, 1798, Id., § 4, p. 566); they gave power to the President to apprehend the subjects of hostile nations whenever he should make "public proclamation" of war (July 6, 1798, Id. 577), and no such proclamation was made; they gave him authority to instruct our armed vessels to seize French "armed," not merchant, vessels (July 9, 1798, Id. 578), together with contingent authority to augment the army in case war should break out or in case of imminent danger of invasion. This legislation shows that war was imminent; that protection of our commerce was ordered, but distinctly shows that, in the opinion of the legislature, war did not in fact exist. * * * Wheaton draws a distinction between two classes of war, saying: "A perfect war is where one whole nation is at war with another nation, and all the members of both nations are authorized to commit hostilities against all the members of the other, in every case, and under every circumstance permitted by the general laws of war. An imperfect war is limited as to places, persons, and things." To which the editor adds: "Such were the limited hostilities authorized by the United States against France in 1798." Lawrence's Wheaton, 518. In cases like this "the judicial is bound to follow the action of the political department of the Government, and is concluded by it" (Phillips v. Payne, 92 U. S. 130, 23 L. Ed. 649); and we do not find an act of Congress or of the Executive between the years 1793 and 1801 which recognizes an existing state of solemn war, although we find statutory provisions authorizing a certain course "in the event of a declaration of war," or "whenever there shall be a declared war," or during the existing "differences." One act provides for an increase of the army "in case war shall break out," while another restrains this increase "unless war shall break out" (1 Stat. L. 558, 577, 725, 750). See also Acts of Feb. 10, 1800, and May 14, 1800. * We are, therefore, of opinion that no such war existed as operated to abrogate treaties, to suspend private rights, or to authorize indiscriminate seizures and condemnations; that, in short, there was no public general war, but limited war in its nature similar to a prolonged series of reprisals.3 8 In Cushing, Adm'r, v. United States, 22 Ct. Cl. 1, 39 (1886), Judge Davis, after remarking that the acts of Congress were not intended to endanger French commerce, and that only armed vessels were to be seized and American vessels recaptured, leaving peaceable French merchantmen to pursue their voyages unmolested, said: "A system of reprisals goes further than this, for it is based upon the principle of compensation, and is aggressive, not defensive, in spirit and intent. 'Reprisals [says Vattel, lib. 2, p. 342] are used between nation and nation to do justice to themselves when they can not otherwise obtain it. If a nation has taken possession of what belongs to another; if it refuses to pay a debt, to repair an injury, to make a just satisfaction, the other may seize what belongs to it and apply it to its own advantage, till it has obtain ed what is due for interest and damage, or keep it as a pledge until full satisfaction has been made. In the last case it is rather a stoppage or a seizure than reprisals, but they are frequently confounded in common language.' "Dr. Woolsey says reprisals consist in recovering what is our own by force, then in seizing an equivalent. We do not attempt to lay down any general rule of law on this question of reprisals, but a study of the authorities leads to the conclusion that the action is affirmative and aggressive in character, having for its object compensation. The essence of reprisals has been said to be security-that is, the seizure of property for protection until just claims are settled, but we do not see that the principle of compensation is thereby changed, as the seizure of property for security must be directed by an effort to obtain security sufficient in amount to provide com. pensation should the demand for redress be unsuccessful." Recurring to the same subject in Hooper, Adm'r, v. United States, 22 Ct. Cl. 408, 456 (1887), Judge Davis, who had delivered the opinion of the court in the principal case, said what may be considered as the final word on this subject, as far as the Court of Claims of the United States is concerned: "Acts of retaliation are admitted to be justifiable under certain circunstances. They may exist when the two nations are otherwise at peace, but they are in their nature acts of warfare. They depart from the field of negotiation into that of force, and, as is war, are justified by a successful result. To term the decrees of France and the acts of their privateers under them 'acts of reprisal' does not alter the facts or the legal position. position has been defined by the Supreme Court of the United States as limited partial war. We, following the path indicated by that tribunal, have defined it as 'limited war in its nature similar to a prolonged series of reprisals."" That PART III RIGHTS AND DUTIES OF NATIONS IN CHAPTER I COMMENCEMENT AND DEFINITION OF WAR THE NAYADE. (High Court of Admiralty, 1802. 4 C. Rob. 251.) This was a case of a quantity of cotton and sugar, taken in 1801, on a voyage from Lisbon to Bordeaux, and claimed on behalf of Mr. Beljeian, describing himself as a Prussian merchant, though resident in Lisbon. Sir W. SCOTT. This is the case of property claimed for a person who was first described in the claim "as a Lisbon merchant, and a subject of Her Majesty the queen of Portugal." Since the time of giving in the claim, it has been thought convenient to alter that description, and to represent him "as a subject of the king of Prussia, resident in Lisbon." It is admitted, however, that he is resident in Lisbon, and the question will be, whether that fact is not sufficient to preclude him from receiving the restitution of this property. It may be necessary to consider, in the first place, the situation in which Portugal then stood. The relation which that country has borne towards France, at different periods, has been extremely ambiguous. At first there was a wish on the part of Portugal not to consider herself as being at war with France; and if a submissive conduct, and a disposition not to resent injuries, could have afforded protection against the violence of France, she might have escaped. But it is equally notorious, that all these concessions were made without success, and proved utterly inefficacious to prevent Portugal from being implicated in a war with France. In cases of this kind, it is by no means necessary that both countries should declare war. Whatever might be the prostration and 1 Part of the opinion is omitted. 2 There must be a declaration, or its equivalent. The Brig Dart, 1 Stew. 30 (1803). submissive demeanor on one side, if France was unwilling to accept that submission, and persisted in attacking Portugal, it was sufficient; and it cannot be doubted by anybody who has attended to the common state of public affairs, that Portugal was considered as engaged in war with France. Without adverting to particular instances, it is notorious and evident from this very case, that there was a French commissary stationed at Lisbon for the regulation of French prisonAt the time of this transaction, Portugal must, indubitably, be taken to have been at war with France. THE ELIZA ANN et al. (High Court of Admiralty, 1813. 1 Dodson, 244.) Sir W. SCOTT. * 3 This was the state of things originally; British ships were excluded from the ports of Sweden, and the island of Hanoe was occupied by British forces. After this, a declaration of war was issued by the government of Sweden; but it is said, that the two countries were not, in reality, in a state of war, because the declaration was unilateral only. I am, however, perfectly clear that it was not the less a war on that account, for war may exist without a declaration on either side. It is so laid down by the best writers on the law of nations. A declaration of war by one country only is not, as has been represented, a mere challenge, to be accepted or refused at pleasure by the other. It proves the existence of actual hostilities on one side at least, and puts the other party also into a state of war, though he may, perhaps, think proper to act on the defensive only. It is the less necessary for me. to insist on the truth of this position, since the language of the treaty places the matter beyond dispute. What appears to have been the motive which led to the appointment of the plenipotentiaries? Why, "a reciprocal desire to put an end to the war which had taken place;" and this they are authorized to carry into effect. Here, then, is a direct recognition of the existence of an antecedent state of war between the two countries. I cannot dive into the motives which led to the hostile declaration on the part of the Swedish government; I can only look to the broad fact, the existence of the war. It may be true. that Sweden resorted to the measure with great reluctance. It is to be hoped that all countries are unwilling to enter upon hostilities, and that they have recourse to them only with a view of avoiding greater evils. It is said, that Sweden acted from fear of the resentment of France, and it may be that she did so; but, from whatever cause it 3 For the facts of the case, see ante, p. 438. Parts of the opinion are omit. ted. proceeded, the fact is, that a war did take place, though it was carried on with inertness by Sweden, and with forbearance by Great Britain. * 4 4 In The Teutonia, L. R. 1871-1873, 4 P. C. A. C. 171 (1872), arising out of the Franco-Prussian War, Lord Justice Mellish said: "Their Lordships have great difficulty in agreeing with the learned Judge that the Teutonia could not have entered Dunkirk without being exposed to the penalties of trading with the enemy of its Country on the 16th of July. There does not appear to their Lordships to be any satisfactory evidence that a state of war existed between France and Prussia prior to the 19th of July. Their Lordships do not think that either the declaration made by the French Minister to the French Chambers on the 16th of July, or the telegram sent by Count Bismarck to the Prussian Ambassador in London, in which he states that that declaration appears to be equal to a declaration of war, amounts to an actual declaration of war. And though it is true, as stated by the learned judge, that a war may exist de facto without a declaration of war, yet it appears to their Lordships that this can only be effected by an actual commencement of hostilities, which, in this case, is not alleged." For a case involving the exact date of the outbreak of the Spanish-American War of 1898, see United States v. Pelly, 4 Commercial Cases, 100 (1899). In the case of The Panama, decided at the same time as The Buena Ventura, 87 Fed. 927, 933 (1898), Locke, J. said: "The Panama sailed from New York before the 21st of April, 1898, and was upon the high seas at that time and at the time of capture. The fact that there had been no formal proclamation or declaration of war before she had sailed or at the time she was captured, or that she had at a recent date, left a port of the United States, cannot be considered as exempting her from the liability of all ene my's property to capture, unless coming directly within the language of the President's proclamation. The practice of a formal proclamation before recognizing an existing war and capturing enemy's property has fallen into disuse in modern times, and actual hostilities may determine the date of the commencement of war, although no proclamation may have been issued, no declaration made or no action of the legislative department of the gov ernment had. This date has been declared by the act of Congress of April 25, 1898, and by the proclamation of the President of the next day to have been April 21, 1898, including that day, so that any Spanish property afloat, captured from that time, became liable to condemnation, unless exempt by the executive proclamation." Articles 4 and 5. This case was affirmed on appeal. The Panama, 176 U. S. 535, 20 Sup. Ct. 480, 44 L. Ed. 577 (1900). To obviate in the future the doubt and difficulty of the past in determining the date at which hostilities began, the Second Hague Peace Conference of 1907 adopted a Convention Relative to the Opening of Hostilities. See appendix, post, p. 1138. It is believed that the various parties to the World War of 1914-1918 complied with the provisions of this convention. |