to England, in the year 1755, prior to any declaration of war, have been in contempt of the law of nations, and condemned by all Europe. Vattel strongly recommends (e) a previous declaration of war, as being required by justice and humanity; and he says, that the fecial law of the Romans gave such moderation and religious solemnity to a preparation of war, and bore such marks of wisdom and justice, that it laid the solid foundation of their future greatness. Bynkershoek has devoted an entire chapter to this question, (f) and he maintains that a declaration of war is not *54 requisite by the law of nations, and that though it may very properly be made, it cannot be required as a matter of right. The practice rests entirely on manners and magnanimity, and it was borrowed from the ancient Romans. All that he contends for is, that a demand of what we conceive to be due should be previously made. We are not bound to accompany that demand with threats of hostility, or to follow it with a public declaration of war; and he cites many instances to show, that within the last two centuries wars have been frequently commenced without a previous declaration. Since the time of Bynkershoek, it has become settled by the practice of Europe, that war may lawfully exist by a declaration which is unilateral only, or without a declaration on either side. It may begin with mutual hostilities. (a) After the peace of Versailles, in 1763, formal declarations of war of any kind seem to have been discontinued, and all the necessary and legitimate consequences of war flow at once from a state of public hostilities, duly recognized, and explicitly announced, by a domestic manifesto or state paper. In the war between England and France, in 1778, the first public act on the part of the English government was recalling its minister, and that single act was considered by France as a breach of the peace between the two countries. There was no other declaration of war, though each government afterwards published a manifesto in vindication of its claims and conduct. The same thing may be said of the war which broke out in 1793, and again in 1803; and, indeed, in the war of 1756, though a solemn and formal declaration of war, in the ancient style, was made in June, (e) B. 8, c. 4, sec. 51. (f) Quæst. J. Pub. b. 1, c. 2. 1756, vigorous hostilities had been carried on between England and France for a year preceding. In the war declared by the United States against England, in 1812, hostilities were *55 immediately commenced on our part * as soon as the act of Congress was passed, without waiting to communicate to the English government any notice of our intentions. But, though a solemn declaration, or previous notice to the enemy, be now laid aside, it is essential that some formal public act, proceeding directly from the competent source should announce to the people at home their new relations and duties growing out of a state of war, and which should equally apprise neutral nations of the fact, to enable them to conform their conduct to the rights belonging to the new state of things. War, says Vattel, (b) is at present published and declared by manifestoes. Such an official act operates from its date to legalize all hostile acts, in like manner as a treaty of peace operates from its date to annul them. As war cannot lawfully be commenced on the part of the United States without an act of Congress, such an act is, of course, a formal official notice to all the world, and equivalent to the most solemn declaration.1 When war is duly declared, it is not merely a war between this and the adverse government in their political characters. Every man is, in judgment of law, a party to the acts of his own government, and a war between the governments of two nations is a war between all the individuals of the one and all the individuals of which the other nation is composed. Government is the representative of the will of all the people, and acts for the whole society. This is the theory in all governments; and the best writers on the law of nations concur in the doctrine, that (b) B. 8, c. 4, sec. 64. 1 But during the late rebellion it was laid down that when the regular course of justice had been interrupted, so that the courts of the United States could not be kept open, a civil war existed, without the necessity of a formal declaration or of legislative sanction. Nelson, J., in his dissenting opinion, cited the above passage. Prize Cases, 2 Black. 635; s. c. The Amy Warwick, 2 Sprague, 123, and The Hiawatha, Blatchf. Pr. 1. See on the subject generally, Twiss, L. of N. War, § 35 et seq. As to Crimean war, see Annual Register, 1854, 256 et seq., and State Papers, 531; Annual Register, 1859, 215 et seq. For the beginning of the war with Denmark, in 1864, see Ann. Reg. 1864, 218; for that of the war between Prussia and Austria, Ann. Reg. 1866, 219; between France and Prussia, Ann. Reg. 1870, 94. when the sovereign of a state declares war against another sovereign, it implies that the whole nation declares war, and that all the subjects of the one are enemies to all the subjects of the other. (c) Very important consequences concerning the obligations of subjects are deducible from this principle. 3. Protection to Enemy's Property. *When hostilities 56 have commenced, the first objects that naturally present themselves for detention and capture are the persons and property of the enemy found within the territory on the breaking out of the war. According to strict authority, a state has a right to deal as an enemy with persons and property so found within its power, and to confiscate the property, and detain the persons as prisoners of war. (a) No one, says Bynkershoek, ever required that notice should be given to the subjects of the enemy, to withdraw their property, or it would be forfeited. The practice of nations is, to appropriate it at once, without notice, if there be no special convention to the contrary. But though Bynkershoek lays down this, as well as other rules of war, with great harshness and severity, he mentions several instances, arising in the seventeenth, and one as early as the fifteenth century, of stipulations in treaties, allowing foreign subjects a reasonable time after the war breaks out to recover and dispose of their effects, or to withdraw them. Such stipulations have now become an established formula in commercial treaties. (b) Emerigon (c) considers such treaties as an affirmance of common right, or the public law of Europe, and the general rule laid down by some of the latter publicists is in conformity with that provision. (d) The sovereign who declares war, says Vattel, can neither detain those subjects of the enemy who are in his dominions at the time of the declaration of war, nor their effects. They came into the country under the sanction of public faith. (c) Grotius, b. 3, c. 4, sec. 9; c. 4, sec. 8; Burlamaqui, pt. 4, c. 4, sec. 20; Vattel, b. 3, c. 5, sec. 70. (a) Grotius, b. 3, c. 9, sec. 4; c. 21, sec. 9; Bynk. Quæst. J. Pub. c. 2 and 7; Martens, b. 8, c. 2, sec. 5. (b) A liberal provision of this kind is inserted in the treaty of amity and commerce between the United States and the Republic of Colombia, which was ratified at Washington, May 27, 1825, and between the United States and the Republic of Venezuela, by the treaty of friendship and commerce in May, 1836. (c) [Traité des Ass. i. 566]. 567. (d) Vattel, b. 8, c. 4, sec. 63; Azuni, pt. 2, c. 4, art. 2, sec. 7; Le Droit Public de l'Europe, par Mably, ŒŒuvres, vi. 334; Burlamaqui, pt. 4, c. 7, sec. 6. By permitting them to enter his territories, and continue * 57 * there, the sovereign tacitly promised them protection and security for their return. He is, therefore, to allow them a reasonable time to retire with their effects, and if they stay beyond the time, he has a right to treat them as disarmed enemies, unless detained by sickness, or other insurmountable necessity, and then they are to be allowed a further time. It has been frequently provided by treaty, that foreign subjects should be permitted to remain, and continue their business, notwithstanding a rupture between the governments, so long as they conducted innocently; and when there was no such treaty, such a liberal permission has been often announced in the very declaration of war. (a)1 Sir Michael Foster (b) mentions several instances of such declarations by the King of Great Britain, and he says that aliens were thereby enabled to acquire personal chattels, and to maintain actions for the recovery of their personal rights, in as full a manner as alien friends. Besides those stipulations in treaties, which have softened the rigors of war by the civilizing spirit of commerce, many governments have made special provision, in their own laws and ordinances, for the security of the persons and property of enemy's subjects, found in the country at the commencement of war. (c) It was provided by Magna Charta (d) that upon the breaking (a) Vattel, b. 3, c. 4, sec. 63. See the treaty of commerce between the United States and the Republic of Chili, May, 1832, art. 23, which affords that permanent protection. (b) Discourse of High Treason, 185, 186. (c) By the Spanish decree of February, 1829, making Cadiz a free port, it was declared, that in the event of war, foreigners who had established themselves there for the purposes of commerce, and becoming alien enemies by means of the war, were to be allowed a proper time to withdraw, and their property was to be sacred from all sequestration or reprisal. 1 See treaties of the United States with Guatemala, 10 U. S. St. at L. 873, art. 25; Costarica, ib. 916, art. 11; Peru, ib. 926, art. 32; Argentine Confederation, ib. 1005, art. 12. By orders in council of the British government, at the beginning of the war with Russia, Russian merchant vessels in British ports were allowed six weeks to load their cargoes and depart. March 29, 1854. It was further ordered that any (d) Ch. 30. Russian merchant vessel which, prior to certain dates, should have sailed from any foreign port for any port in her Majesty's dominions, might enter such port, discharge her cargo, and depart without molestation. March 29, 1854; April 15, 1854. These and other orders are given in 1 Spinks, Ec. & Ad. R. app.; Cong. Doc. 33 Cong., 1 Sess. H. R. No. 108, p. 5. See Clemontson v. Blessig, 11 Exch. 135. mer * 58 out of war, foreign merchants found in England, and belonging to the country of the enemy, should be attached, "without harm of body or goods," until it should be known how English merchants were treated by the enemy; "and if our chants," said the charter, "be safe and well treated there, theirs shall be likewise with us." It has been deemed extraordinary, that such a liberal provision should have found a place in a treaty between a feudal king and his barons; and Montesquieu (a) was struck with admiration at the fact, that a protection of that kind should have been made one of the articles of English liberty. But this provision was confined to the effects of alien merchants who were within the realm at the commencement of the war, and it was understood to be confined to the case of merchants domiciled there. (b) It was accompanied, also, with one very ominous qualification; and it was at least equalled, if not greatly excelled, by an ordinance of Charles V. of France a century afterwards, which declared that foreign merchants who should be in France at the time of the declaration of war, should have nothing to fear, for they should have liberty to depart freely with their effects. (c) The spirit of the provision in Magna Charta was sustained by a resolution of the judges, in the time of Henry VIII., when they resolved, that if a Frenchman came to England before the war, neither his person nor goods should be seized. (d) The statute of staples, of 27 Edw. III. c. 17, made a still more liberal and precise enactment in favor of foreign merchants, residing in England, when war commenced between their prince and the king of England. They were to have convenient warning of forty days, by proclamation, to depart the realm with their goods; and if they could not do it within that time, by reason of accident, they were to have forty days more to pass with their merchandise, and with liberty, in the mean time, to sell the same. The act of Congress of the 6th of July, 1798, c. 73, was dictated by the same humane and enlightened policy. It authorized the President, in *case of war, to direct the conduct to be observed towards subjects of the hostile nation, being aliens, and within the United (a) Esprit des Lois, 20. 14. (b) 1 Hale's P. C. 93. (c) Henault's Abreg. Chron. i. 338. (d) Bro. tit. Property, pl. 38; Jenk. Cent. 201, case 22. * 59 |