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. (w) Hale's Pleas of the Crown, vol. i. p. 162. (x) Owen, 45.

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.

upon

And therefore in the case in question touching treason, it shall 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 [*100] thereof between the two Kings, yet if a subject born of the King 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 :(6) 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). (c) 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 publie 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 counter-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." (2)

[*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.

more immediately and directly in the relations of the belligerents and their allies, but mediately and indirectly in the relations of States which take no part in the contest.

War, of necessity, brings with it new rights to the belligerent and new obligation to the neutral. It is not, as it is sometimes inaccurately expressed, that there ensues a collision between the rights of the two parties, because a collision of rights is, accurately speaking, impossible, but that the rights of the neutral were always subject to the contingency of being affected and modified by War; for "every duty is a limitation of some power."(a) And as war is a lawful mode of obtaining redress and adjusting differences between independent States, and as this end requires that compulsory means of destruction and distress should be inflicted upon the persons and property of the enemy,(b) no neutral State has a right, for the sake of private advantage, to prevent these compulsory means from producing their effects.

It matters not whether the war be called offensive on the one side, and defensive on the other. It may happen that the nominally offensive is the really defensive war,—that the *first blow has been struck by way of defence to ward off a menaced and anticipated blow, [*104] nor does it matter upon which element, earth or water, the war be carried on, the rules and principles of War, the rights of belligerents and the duties of the neutral are the same, whether the war be called offensive or defensive, and whether it be carried on by sea or by land.

In the case, indeed, of an ally, bound to assist when his friend is attacked, but not always when he attacks, the casus fœderis may, as will be seen hereafter, be affected by the fact, whether the war be offensive or defensive on the part of the friend. But as, owing partly to the fact of the establishment of International Courts of Prize, and the fact of the non-establishment of similar Courts of Booty,(c) and partly to the reason of the thing, arising from the character of warfare by sea, it has happened that the maritime intercourse of nations during war has been subject to a code of more detail and more precision than the intercourse by land, it will therefore be convenient to consider the questions relating to belligerent rights at sea, apart and distinct from those on land, though the principle of public policy and public law are, as Lord Stowell observed, “just as weighty upon the one element as the other.”(d)

LXVIII. We must now proceed to consider the effect of War upon1. The property and persons of the subjects of the belligerent State. 2. The property and persons of the subjects of the ally.

3. The property and persons of the subjects of the enemy. 4. The property and persons of the subjects of the neutrals.

LXIX. First, as to the effect of War upon the property and persons of the subjects of the belligerent.

The cardinal maxim of law, which meets us on the threshold, and which (a) Burke, Appeal from the New to the Old Whigs, Burke's Works, vol. ix. p.

202.

(b) "Neque enim bellum gerere, quicquam aliud est, quam id, quod quis sibi deberi existimat, manu extorquere ab invito et renitente Principe vel Populo."Bynk., Q. J. P., 1. i. c. iv.

(c) Vide post.

(d) The Hoop, 1 Rob. Adm. Rep. 217.

most materially affects the whole question, is this, *that the will [*105] of the subject is bound up in that of his Government, or of the government of the country in which he is domiciled, as to matters of trade,(e) so far as Public and International Law are concerned with the question.(f) The leading case on this subject is the Hoop,(g) which contains a review of the law of all countries on this important subject. Lord Stowell supports his opinion, that by the Law of England all trading with the public enemy is interdicted, by the following argu

ment :

"In my opinion, there exists such a general rule in the maritime jurisprudence of this country, by which all trading with the public enemy, unless with the permission of the sovereign, is interdicted. It is not a principle peculiar to the maritime law of this country; it is laid down by Bynkershoek as an universal principle of law-Ex naturâ belli commercia inter hostes cessare non est dubitandum. Quamvis nulla specialis sit commerciorum prohibitio, ipso tamen jure belli commercia esse vetita, ipsæ indictiones bellorum satis declarant, &c. He proceeds to observe, that the interests of trade, and the necessity of obtaining certain commodities, have sometimes so far overpowered this rule, that different species of traffic have been permitted prout e re suâ, subditorumque suorum esse censent principes. But it is in all cases the act and permission of the sovereign. Wherever that is permitted, it is a suspension of the state of war quoad hoc. It is, as he expresses it, pro parte sic bellum, pro parte pax inter subditos utriusque principis. It appears from these passages to have been the law of Holland; Valin, 1. iii. tit. 6, art. 3, states it to have been the law of France, whether the trade was attempted to be carried on in national or in neutral vessels: it will appear, from a case which I shall have occasion to mention (the Fortuna,) to have been the law of Spain; and it may, I think, [*106] without rashness, be affirmed to have been a general principle of law in most of the countries of Europe.

"By the law and constitution of this country, the sovereign alone has the power of declaring war and peace—he, alone, therefore, who has the power of entirely removing the state of war, has the power of removing it in part, by permitting, where he sees proper, that commercial intercourse which is a partial suspension of the war. There may be occasions on which such an intercourse may be highly expedient. But it is not for individuals to determine on the expediency of such occasions on their own notions of commerce, and of commerce merely, and possibly on grounds of private advantage not very reconcilable with the general interest of the State. It is for the State alone, on more enlarged views of policy, and of all circumstances that may be connected with such an intercourse, to determine when it shall be permitted, and under what regulations. In my opinion, no principle ought to be held more sacred than that this intercourse cannot subsist on any other footing than that

(e) The Indian Chief, 5 Ib. 19. "A criminal transaction on the common principle, that it is illegal in any person owing an allegiance, though temporary, to trade with the public enemy."

(f) The Santa Cruz, 1 Ib. 61.

(g) The Hoop, 1 Ib. 198.