"of him. A judge," he says, "who orders a convicted "criminal to be slain by the axe of the executioner, though "he be in chains and unarmed, is not, on that account, called "unjust. If he were to loosen the bonds of the criminal "and put a weapon into his hands, there would be a trial of courage and fortune, and not a punishment of a wrong"doer."

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This illustration appears, by the incorrectness of its analogy, to furnish an answer to the doctrine which it is adduced to support.

In the case of the criminal, there is no doubt that he is a wrong-doer, and that his execution has been lawfully ordered by a competent authority (o). But in the case of contending nations, it may, and we must hope generally does, happen that both parties believe that right is on their side. 66 Atque hinc," says Grotius, "passim recepta est sententia, subditos quod attinet, dari bellum utrimque "justum, id est injustitiâ vacans, quò illud pertinet" (p). But as States acknowledge no common tribunal upon earth, they are constrained, as the civilians say, litem suam facere, or, according to the common English phrase, "to take the "law into their own hands," and to consider success in the strife as the decision of God in their favour.

To say that this is often a mistaken presumption, to object that this method of obtaining justice is unsatisfactory, uncertain, and attended with cruel injury to the innocent, is but to complain that we live in a world in which evil and

(0) Quod inter duos populos de jure belli pronuntiare velle periculosum fuerat aliis populis, qui eâ ratione bello alieno implicarentur, sicut Massilienses in causâ Cæsaris et Pompeji dicebant, neque sui judicii neque suarum esse virium discernere utra pars justiorem haberet causam : deinde, quod etiam in bello justo vix satis cognosci potest ex indiciis externis, quis justus sit se tuendi, sua recuperandi, aut pœnas exigendi modus, ita ut omnino præstiterit hæc religioni bellantium exigenda relinquere, quam ad aliena arbitria vocare."Grotius, 1. iii. c. iii. 4.

(p) L. ii. c. xxvi. s. 4. p. 3.

good are mixed together, and which has the blemishes of imperfection (q); but this absence of a common tribunal, this want of a common International Judge, this consequent necessity of war, does furnish in its admitted imperfection, as a mode of judicial procedure, a very good reason to all societies, and especially to all Christian societies, why a broad distinction should be made between the criminal convicted by the judge, and the enemy conquered by the enemy, -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 (r).

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 of Right (s); 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

(q) “As to War, if it be the means of wrong and violence, it is the sole means of justice among nations: nothing can banish it from the world. They who say otherwise, intending to impose upon us, do not impose upon themselves. But it is one of the greatest objects of human wisdom to mitigate those evils which we are unable to remove." -Burke, Letters on a Regicide Peace, viii. 181.

(r) 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.)

(3) Vol. i. p. 183.

but just attack upon one who defended the fraudulent evasion of Treaties," Sed quia eam rem rationibus tueri non potest, "unicè tuetur scelerum exemplis " (t).

Those harsh and barbarous practices, that pushing of a 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 (animi magnitudo) and not to the obligations of right (justitia), is now enjoined by the recognised rule of warfare of civilised States. To put to death the unarmed and unresisting prisoner, to poison the enemy, to sell the captive into slavery (u), to employ the arm of the assassin, are practices which the voice of Christendom has both reprobated and rendered illegal; for instance, Bynkershoek 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 penalties of the illegal act.

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.

(t) Quæst. Jur. Pub. 1. ii. c. ix.

(u) "Of being taken by the insolent foe,

And sold to slavery."-Othello, act i. sc. iii.

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, re

(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.

moved from acts of piracy. On the other hand, Bynkershoek, 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

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part of Portugal not to consider herself as being at war "with France; and if a submissive conduct, and a disposi"tion 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 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 anybody who has attended to the common state of public affairs, that Portugal was con"sidered as engaged in War with France. Without adverting to particular instances, it is notorious and

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