doctrine is, that if the act is ratified by his government, or rather, is not disclaimed, the government is responsible; otherwise, it becomes an individual act, and the guilty party should be surrendered up for punishment. Burlamaqui says : 'A mere presumption of the will of the sovereign would not be sufficient to excuse a governor, or any other officer, who should undertake a war, except in the case of necessity, without either a general or a particular order.' 'Whatever part the sovereign would have thought proper to act, if he had been consulted, and whatever success the war undertaken without his order may have had, it is left to the sovereign whether he will ratify or condemn the act of the minister. If he ratifies it, this approbation renders the war solemn, by reflecting back, as it were, an authority upon it, so that it obliges the whole commonwealth. But if the sovereign condemn the act of the governor, the hostilities committed by him ought to pass for a sort of robbery, the fault of which by no means affects the State, provided the governor is delivered up and punished according to the laws of the country, and proper satisfaction be made for the damage sustained.'1

of a colony, or any military officer holding any station in a colony, should be guilty of any crime or offence in the exercise or execution of his office, or under colour of it. he should be liable to be tried at Westminster. There was no doubt, that what he had done, was done as governor of Jamaica, and that if anything was an offence, it was done under colour of his office. Lord (then Mr. Justice) Blackburn charged the grand jury that 'the legal duty, and therefore the legal responsibility, of persons in such a position, varies very much according to their powers and functions ... but the principle is the same; the officer is bound to exercise the powers which the law gives him in the manner which under the circumstances would be right, and if he fails in something he ought to do, or which the circumstances render it his duty to do, and he neglects his duty to such an extent as to amount to criminal negligence, then he will be criminally responsible.' Thirty years before, the Mayor of Bristol had been prosecuted for not having taken proper steps to put down the riots in that city, which had continued for three days, and a great part of Bristol was burnt down. Mr. Eyre's was the converse of that case; he was charged with having exceeded his duty. Under the Colonial Act, Mr. Eyre had power, in case of apprehended danger, to proclaim martial law in the sense of suspending the common law, and enabling matters to be tried by summary procedure 'such as in armies in time of war.' And he did so. Looking at the insurrection,' continued Lord Blackburn, 'the massacre and the efforts of the insurgent negroes to rouse the country for the purpose of insurrection, I have no hesitation in saying that not only was there no culpability in declaring martial law, but that probably the governor would have been punishable if he had not declared it.' The grand jury returned no bill.—See Ann. Reg. cx., 206; R. v. Pinney, 3 B. and A., 958; Keeley v. Carson, 4 Moore P. C. R., 85.

1

Burlamaqui, suprà; the People v. McCloud, 25 Wend. R., 552.

29. Vattel divides all hostile collisions between nations into two sorts of wars, lawful and unlawful. Unlawful wars are those undertaken 'without apparent cause,' and for 'havoc and pillage,' and all which do not come under this head are classed as lawful wars. Unlawful wars are such as were waged by the Grandes compagnies,' which had assembled in France during the wars with the English; armies of banditti which ranged about Europe purely for spoil and plunder. Such were the cruises of the filibusters, without commission, and in time of peace; and such, in general, are the depredations of pirates. To the same class belong almost all the expeditions of the African corsairs, though authorised by a sovereign, they being founded on no apparent just cause, and whose only motive is the avidity of captures. I say these two sorts of war, lawful and unlawful, are to be carefully distinguished, their effects, and the rights arising from them, being very different.'1

§ 30. Writers on international jurisprudence very properly distinguish between unlawful and unjust wars. Where the war is duly declared or begun, and carried on by the proper authority of the State, it is a lawful war, and, by the voluntary law of nations, is regarded as a just war so far as the belligerent rights of the parties are concerned. Vattel compares the State that carries on an unjust war to the individual who refuses to pay his honest debts, on the ground of prescription. This rule of civil law is made for the general benefit of the community, although it may at times enable the individual to offend against his duty. So of the law of nations. In order to avoid, as far as possible, the evils of human society, it is agreed to regard every lawfully declared war as just on both sides. But, says Vattel, we are never to forget that this voluntary law of nations, which is admitted from necessity, and to avoid greater evils, does not give to him whose arms are unjust a genuine right, capable of justifying his conduct, and acquitting his conscience, but only the external effect of the law and impunity among men.' 2

1 Vattel, Droit des Gens, lib. iii. ch. iv. § 67.

2 Vattel, Droit des Gens, liv. iii. ch. xii. §§ 188-192.

On August 9, 1864, Prince Bismarck addressed a note to the Prussian Minister in London, in which, alluding to the preliminaries of peace which had been signed at Vienna, he said he hoped the British Government would recognise the moderation and placability displayed by Prussia and Austria towards Denmark. To this Earl Russell replied

§ 31. It has already been shown, in speaking of seizures and reprisals, that the hostile acts of individuals, when ratified and assumed by their government, are to be regarded as the hostile acts of the State. These acts may be of the character of reprisals, or of mixed or imperfect war, or of a virtual declaration and commencement of solemn war. Such acts,

however, must not exceed what the laws of war have established as belligerent rights of the subjects of hostile States. For anything done in violation of the laws of war, the individual is liable to punishment. So, also, for any act within the rules of war, not authorised or assumed by his government, as the act of the State. The distinction between the two cases is manifest, and should never be lost sight of the latter is punishable by the rules of civil law, while the former is an offence against the law of nations, punishable only by the laws and usages of war. The taking of property, and of human life, in the one case, would be robbery and murder, punishable under the local laws; while in the other case the same acts might be fully justifiable as the lawful exercise of belligerent rights under the law of nations.'

that, 'challenged by M. de Bismarck's invitation to admit the moderation and forbearance of the great German Government, Her Majesty's Government feel bound not to disguise their own sentiments upon these matters. Her Majesty's Government have indeed from time to time, as events took place, repeatedly declared their opinion that the aggression of Austria and Prussia upon Denmark was unjust, and that the war as waged by Germany against Denmark had not for its groundwork either that justice or that necessity which are the only bases on which war ought to be undertaken. Considering the war, therefore, to have been wholly unnecessary on the part of Germany, they deeply lament that the advantages acquired by successful hostilities should have been used by Austria, and Prussia, to dismember the Danish Monarchy, which it was the object of the Treaty of 1852 to preserve entire. Her Majesty's Government are also bound to remark, when the satisfaction of national feelings is referred to, that it appears certain that a considerable number-perhaps two or three hundred thousand-of the Danish population are transferred to a Ge man State, and it is to be feared that the complaints hitherto made respecting the attempts to force the language of Denmark upon the German subjects of a Danish sovereign, will be succeeded by complaints of the attempts to force the language of Germany upon the Danish subjects of a German sovereign. . . . If it is said that force has decided the question, and that the superiority of the arms of Austria and Prussia over those of Denmark was incontestable, the assertion must be admitted. But in that case it is out of place to claim credit for equity and moderation.'—See Ann. Reg., cvi. 231.

1 Vide ante, ch. xiv.; Opinions U. S. Att'ys Genl., vol. i. p. 81; Carrington et al. v. C. Ins. Co., 8 Peters K., 522; Tallmadge Review, etc., 26 Wend. R., app., 674; Thorshaven and its Depend., 1 Edw. R., 102; Brown. The United States, 8 Cranch. R., 132; Heffter, Droit International, § 119.

474

CHAPTER XVII.

DECLARATION OF WAR AND ITS EFFECTS.

1. By whom war is to be declared-2. Ancient modes of declaring it— 3. Modern practice of unilateral declaration—4. When this may be dispensed with-5. Conditional declaration-6. Offers after declaration--7. Object of declaration in defensive war-8. Effect upon individuals-9. On commerce, contracts, etc.-10. Carrying supplies and withdrawing goods-11. Single exception to rule of non-intercourse12. Effect upon subjects of an ally-13. Subjects of enemy in territory of belligerents-14. Laws of particular States-15. Enemy's property in territory of belligerents-16. Conduct of belligerents in war of 1853-4-17. Debts due to subjects of an enemy-18. Opinions of Kent and Wheaton-19. Distinction made by England between debts and other property-20. Her conduct towards Denmark in 1807-21. Commencement of war, how determined-22. How notified to neutrals-23. Effects of declaration of war on treaties-24. On local civil laws-25. Martial and military law-26. Martial law in European countries-27. U. S. Constitution on suspension of writ of habeas corpus-28. Examples of its suspension-29. Powers and duties of the President-30. Exercise of power to declare martial law.

§ I. THE right of making war, as well as the right of authorising retaliations, reprisals, and other forcible means of settling international disputes, belongs, in every civilised nation, to the supreme power of the State, whatever that supreme power may be, or however it may be constituted. As States are known to each other only through their constituted authorities, so all other relations, whether peaceful or hostile, must be settled by their recognised governments. They cannot be legally changed or interfered with by individuals. But this supreme power, originally resident in the body of the nation, may be made up of different elements, which are divided and limited according to the will of the nation, and it is only from the particular institution, or fundamental laws of each State, that we are to learn where the power resides which is authorised to make war in the name of the society at large. In the ancient republics of Greece

crown.

and Italy, and among the ancient Germans, it resided with the people in their collective capacity. In England and other monarchical governments of Europe, it is vested in the In the United States it is confided to the federal legislature. Where it resides with the people and is retained by them as a portion of sovereign power, it must be exercised by them in their collective capacity as provided by constitutional law, and neither individuals, nor bodies of individuals, less than the sovereign authority of the entire State, can authorise the making of a public war. Nevertheless a subordinate or local officer, as will hereafter be shown, may commence hostilities in certain cases, his acts being subsequently ratified by the proper authority, as was the case with General Taylor on the Rio Grande, in the war of 1846 between the United States and Mexico.1

§ 2. It was customary, in former times, to precede hostilities by a public declaration, communicated to the enemy. This was always done by the ancient Greeks and Romans.

1 The king has the sole prerogative of making war and peace. For it is held by all the writers on the law of nature and nations, that the right of making war, which by nature subsisted in every individual, is given up by all private persons that enter into society, and is vested in the sovereign power; and this right is given up, not only by individuals, but even by the entire body of people that are under the dominion of a sovereign. It would, indeed, be extremely improper, that any number of subjects should have the power of binding the supreme magistrate, and putting him, against his will, in a state of war. Whatever hostilities, therefore, may be committed by private citizens, the State ought not to be affected thereby; unless that should justify their proceedings, and thereby become partner in the guilt. Such unauthorised volunteers in violence, are not ranked among open enemies, but are treated like pirates and robbers: according to that rule of the civil law.-Hostes hi sunt qui nobis, aut quibus nos, publice bellum decrevimus: cæteri latrones aut prædones sunt. And the reason which is given by Grotius, why, according to the law of nations, a denunciation of war ought always to precede the actual commencement of hostilities, is not so much that the enemy may be put on his guard (which is matter rather of magnanimity than right), but that it may be certainly clear that the war is not undertaken by private persons, but by the will of the whole community, whose right of willing is in this case transferred to the supreme magistrate by the fundamental laws of society. So that in order to make a war completely effectual, it is necessary in England that it be publicly declared and duly proclaimed by the king's authority, and, then, all parts of both the contending nations, from the highest to the lowest, are bound by it. And wherever the right resides of beginning a national war, there also must reside the right of ending it, or the power of making peace. And the same check of Parliamentary impeachment, for improper or inglorious conduct, in beginning, or conducting, or concluding a national war, is in general sufficient to restrain the ministers of the Crown from a wanton or injurious exertion of this great prerogative. -Blackst. Comm, vol. i. ch. 7.