why it is not lawful to treat the honest warrior and the guilty murderer in one and the same manner; and if this be so, reason, morality, and religion, alike commend to the understanding and the conscience of nations, that cardinal principle of the law of war, to which reference has been already made, and by which it is decided "that everything is not lawful against an enemy," but only those things which are essential to the vigorous prosecution and speedy termination of the war.(q)

The truth is that here again we may apply a remark made in an early part of this treatise with respect to the distinction between Right and Comity, namely, that the practice and *usage of nations was perpetually transplanting the concessions of Comity into the domain [*73 ] of Right;(r) and so it has fared with the law of War since the time when Bynkershoek lived. As to mere historical precedents in such a matter, we are reminded of Bynkershoek's own indignant but just attack upon one who defended the fraudulent evasion of treaties. "Sed quia eam rem rationibus tueri non potest unicè tuetur scelerum exemplis."(s)

Those harsh and barbarous practices, that pushing of an extreme principle to its most odious extreme, has ceased to be among the legal usages of War. An abstinence from them, which Bynkershoek would have ascribed to the dictates of magnanimity (animo magnitudo) and not to the obligations of right (justitia,) is now enjoined by the recognized rule of warfare of civilized States. To put to death the unarmed and unresisting prisoner, to poison the enemy, to sell the captive into slavery,(t) to employ the arm of the assassin, are practices which the voice of Christendom has both reprobated and rendered illegal; for instance, Bynker shoek says, that when the Roman Consuls wrote to King Pyrrhus “nobis non placet pretio aut præmio, aut dolis pugnare," and apprised him that an offer to poison him had been made to them, they did an act of extraordinary generosity; but during the last war with France, the British Government sent notice to the First Consul of a similar offer which had been made to them, and not to have done so would have been unworthy of any Christian State.

With respect to the use of fraud or stratagem, while it cannot be contended that such an instrument of War is illegal, the doctrine of Bynkershoek that every species of deceit, except perfidy, is lawful, is too broad a proposition; for instance, Prize Courts have held that though sailing under false *colours does not, firing under them does subject the vessel to the penaties of the illegal act.

[*74]

Perfidy is clearly illegal, and for the reason assigned by this author, namely, that the parties to the promise or stipulation, are, so far as that is concerned, divested of the character of enemies.

(q) I cite with pleasure the language of Bodinus, far sounder upon this point than Bynkershoek, however inferior to him as a jurist in other respects:-"At qui bello injusto captivos servare humanitatis esse putant, consimiliter faciunt, ut latrones, ac piratæ, qui se vitam dedisse jactant, quibus non ademerunt."-De Repub., 1. i. p. 34. (Parisiis: ed. 1586.)

(r) Vol. i. pp. 160-1.

(s) Quæst. Jur. Pub., 1. ii. c. ix.
"Of being taken by the insolent foe,
And sold to slavery."-Othello, act i. sc. iii.

[*75]

*CHAPTER V.(a)

WAR-DECLARATION UNNECESSARY.

LI. THE precise date which marks the beginning of the War is, on account of the change which is then effected in the duties and obligations both of belligerent and neutral States, a subject of very great importance. Some International Jurists dwell upon the distinction between a War which is solemnly, and a War which is not solemnly proclaimed.

Albericus Gentilis, Grotius, Puffendorff, Huberus, Zouch, are of opinion that every War should be preceded by a solemn declaration; though Gentilis and Zouch think that it may be dispensed with in certain cases; and it certainly would appear that Valin and Emerigon considered hostilities not preceded by such a declaration as little, if at all, removed from acts of *piracy. On the other hand, Bynkershoek, [*76] Heineccius, and most modern publicists, hold that no such solemn declaration is necessary; and any person who has read the chapter of Bynkershoek on the subject, will perceive that his view is sustained both by the reason of the thing and by the practice of nations.

In the case of the Nayade, decided in the English Prize Court, property was claimed by a person professing to be a subject of Portugal, and with respect to the capture, it was argued, that there was nothing to show that Portugal was at that time at war with France; that if the Government of Portugal submitted to suffer injury and indignity rather than give a pretext to the rapacious ambition of France by declaring War, merchants resident within that country were entitled to the benefit of a state of peace.

"Lord Stowell said in his judgment,-" 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 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 submissive

(a) Grotius, 1. iii. c. iii., "De Bello Justo sive Solenni Jure Gentium, ubi de Indicatione." Bynkershoek, Q. J. P., l. i. c. ii., "Ut Bellum sit legitimum, Indictionem Belli non videri necessariam." Heinecc., El., II. s. 198. Vattel, 1. iii. c. iv. Klüber, s. 2, p. 238. Hautefeuille, Des Droits et des Devoirs des Nations Neutres, 1. i. t. iii. s. 2, p. 1. Rutherforth, Inst., B. ii. c. ix. ss. 10, 15. Wheaton, Elém., t. i. c. i. ss. 6, 7, 8.

Ward, An Enquiry into the Manner in which the different Wars in Europe have commenced during the last two Centuries; to which are added the Authorities upon the Nature of a Modern Declaration (pub. 1805), a treatise full of information on this subject. Wildman, Int. Law, B. ii. pp. 5-8.

demeanour 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 any body 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 prisoners. At [*77]

the time of this transaction, Portugal must, indubitably, be taken to have been at war with France."(b)

And in a later case (1813,) in which a question arose with respect to the neutrality of Sweden, at the time of the seizure of American ships. in Swedish waters, Lord Stowell said, "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."(c)

LII. The argument derived from the practice of nations, has received, as will be seen, strong confirmation from the precedents which have happened since the period when Bynkershoek wrote. We pass by, therefore, the continued conflicts between Queen Elizabeth and Philip II., which preceded the invasion of the Spanish Armada without any declaration, and, indeed, without any acknowledgment of War, only remarking, by the way, that no such declaration heralded the invasion of the Armada itself. But we must observe that the great Gustavus, without any declaration, invaded the dominions of the Emperor of Germany, and that he gave, as a reason for so doing, the assistance which the Emperor had afforded to his (Gustavus's) enemy, the King of Poland.

*It is to be remembered that this assistance had been rendered nearly a year before the invasion of Germany.

[*78]

Loccenius observes upon this conduct of Gustavus in a remarkable manner:-"Cæsari vero indicere bellum, rex non necessarium esse putavit, quum vim sibi ab eo prius haud denuntiatis armis, illatam arcere, natura ipsa permitteret; et hoc ipso satis denuntiatum bellum a se esse crederet."(d)

We pass by, too, the celebrated Wars between the English and the Dutch in the seventeenth century, carried on, as Bynkershoek well knew, without any previous declaration.

It is worthy of remark, however, that Prince Rupert, in his narrative laid before Parliament (November, 1664,) says, that he considers certain violent acts on the part of the Dutch Admiral, as a denunciation of War against him.

(b) 4 Rob. Adm. Rep. 253. (d) L. viii. p. 567.

(c) The Eliza Ann, 1 Dod. Adm. Rep. 247.

LIII. In the war (1688) which ensued upon the League of Augsburg, Louis XIV. marched to the Rhine, invested all, and captured some, of the fortresses of the Palatinate before the publication of his manifesto of War.

The great War of the Spanish Succession was carried on for many months without any declaration.

The bloody battle of Chiari was fought on the 1st September, 1701the formal declaration on the part of the Emperor was published on the 15th of May, 1702, and that of the King of France during the month of July in the same year.

LIV. After the Treaty of Utrecht, in 1718, England, resolving to prevent the invasion of Sicily by Spain, gave instructions to the Commander of her Mediterranean fleet to repair to Spain and apprize the King that England would not allow any further violation of the Treaties by which he was bound; and that if the invasion was not abandoned, England would oppose Spain with all her power.

Byng, the English Admiral, repaired to Cadiz, and sent his despatches to Stanhope, the English Ambassador at Madrid.

*Spain was governed at that time by the profligate adventurer [*79] Alberoni, who, after a few hours' consideration of the English demand, wrote a passionate answer to the effect that Byng might execute his orders; and the consequence was the entire destruction of the Spanish fleet at Passaro, on the 11th August, 1718.

Here we have an instance in which all the requirements of International Law are satisfied without any formal declaration of War, and in which the necessity of any such declaration would, by the intervening delay, have enabled Spain to destroy the ally whom the English fleet was sent to protect.

The Spanish Ambassador, Monteleone, at the British Court, and Alberoni, filled Europe with remonstrances against an act, which they stigmatised as being "contrary to the Law of Nations, and a breach of solemn Treaties;" and their language was echoed by some of the opposition to Government in Parliament; and on this side are to be ranged the authorrities derived from the names of Walpole, Cowper, and Bathurst. But Sir Joseph Jekyll, though not a friend to the Government, expressed a sounder opinion upon the law of the case, when he said that "he was fully convinced, that if there was any injustice, it was on the side of the King of Spain; and that the conduct of His Majesty and his ministers was entirely agreeable to the Law of Nations, and the rules of justice and equity." Mr. Ward (who gives a very spirited account of the whole transaction) observes, that "his (Sir. J. Jekyll's) conduct and opinion were by far the most rational. No one denies, as a general, unexplained proposition, that it is unjust to attack, without declaration, or pending an amicable negotiation. No one, on the other hand, can deny that there may be specific circumstances, which may take the matter out of the general rule. In concluding the account of this remarkable case, we must observe, that by the fifth article of the Treaty of Madrid, June 13th, 1721, it was agreed that all the ships taken in the battle of Passaro, or their values, should be restored. That Treaty stipulated the

[*80]

mutual restitution of all goods, *merchandizes, money, and ships taken since the commencement of the War, whether before or after the declaration; that is, of all things, when or wheresoever taken. Hence the third article states, that Spain will restore everything, or its value, that had been seized in Europe, or in the West Indies, by virtue of the orders in the month of September, 1718. This was the epoch of hostilities on the part of Spain."(e)

LV. It was the sad destiny of Spain to fall under the misgovernment of Ripperda, after she had escaped from that of Alberoni. The mysterious Treaty of Vienna, in 1726, was almost the first act of the new minister, and led to a fresh embroilment. Ripperda soon made shipwreck of his fortunes in the storm which he had raised; and eventually, as we have seen, fled for refuge to the English Ambassador at Madrid.(ƒ) From this refuge he was forcibly taken; the English Ambassador resented the act as a violation of ambassadorial privileges, and while sharp remonstrances were passing between the two Courts, an English fleet arrived in the Spanish waters. The Admiral obtained permission, on the faith of the existing peace, to enter Santona; the Spanish Minister, however, immediately wrote to the English Ambassador, desiring him to declare, "without any equivocation," what were the true intentions of the British Admiral. "The king," said he, "expects you to reply by the return of the messenger; and if your excellency does not immediately answer categorically and without equivocation, his majesty will take such measures, and give such orders, as suit his royal service.'

"The import of these words," Mr. Ward observes, "is always understood as a conditional declaration of War."(g)

The English Ambassador replied, that he must communicate with his own Sovereign; and an answer was returned *from England [*81] containing a list of grievances, and complaining that no reparation had been offered for the insult to the ambassador. In the meantime, the ill-fated and ill-used Hosier sailed with another fleet to the West Indies, and prevented the sailing of the galleons from Portobello to Spain. It is difficult to distinguish such conduct from open War; but it was not till six months afterwards that the Spanish Ambassador at London delivered in a memorial to the Duke of Newcastle, in which he announced, that the longer continuance of the squadron in the West Indies would be a continuance of voluntary hostilities, authorised by his Britannic Majesty. "As such," said the ambassador, "the King, my master, does already, and will look upon them; he thinks himself justified to repel these injuries and hostilities with all the power that God hath put into his hands; and he has a right to require the stipulated succours from his allies: he would be glad to cultivate peace, but he neither can nor will hearken any more to any complaint, while His Britannic Majesty shall be, with arms in hand, in the dominions of Spain, as he effectually is, while his squadron is continued in the West Indies."(h)

The King of England, in his speech to parliament, on the 17th of January, 1727, stated that he considered this language to be "little short

(e) Ward, pp. 22-3.

(h) Ward, ib., pp. 26-7.

(ƒ) Vide ante, vol. ii. p. 210. (g) Ward, ib., pp. 24-5. Historical Register, 1727.