tion; of the war between Cromwell and the Dutch, in which not even were manifestoes published until after Blake fought Van Tromp and scoured the seas in quest of Dutch ships; of the next Dutch war of 1664, in which hostilities were not proclaimed until March, 1665; of the war of "devolution," as it is sometimes called, when Louis XIV., in 1667, invaded the Spanish Netherlands as his wife's inheritance; of the long war ended by the peace of Ryswick, in which Louis issued no manifesto until his armies were in the Palatinate, where, however, the League of Augsburg gave him the appearance of acting on the defensive; of the great war of the Spanish Succession, which opened many months before a declaration; of Spain's attempts, under Alberoni, in 1718, on Sardinia and Sicily, with England's interference, - the declaration here following by more than four months Byng's destruction of the Spanish fleet at Passaro;-of the quarrel between Great Britain and Spain in 1726, made up by the peace of Vienna of 1727, in which Admiral Hosier obstructed Spanish navigation in America and Spain besieged Gibraltar without formalities, and which might be regarded as reprisals on a large scale; of the war between the same parties growing, in 1738, out of the right of search exercised by the Spanish guarda costas, and in which there was no proclamation until several months after letters of marque and reprisal had been issued by Great Britain; of the contest between Great Britain and France connected with this war, as parties in the war of the Austrian Succession (comp. § 120), in which the battle of Dettingen preceded proclamations of war by nine months; of the invasion of Silesia in 1740, without even bringing forward any pretensions or claims, and thus wholly against all law; of the disagreements in America between France and Great Britain, which led to war there in 1754, and which were followed by hostilities on the sea without declaration until the spring of 1756 (comp. § 120); of the invasions of Saxony and Bohemia by Frederic the Great in the same year; and of the war between England and France in 1778, in which the actual hostilities of the latter occurred many weeks before war was proclaimed.

In some of these cases, war may be said to have grown out of reprisals, without there being any moment of time when the one passed into the other. In some cases, again, there was negligence, if not intentional fraud, in not seeking to obtain justice before proceeding to the ultima ratio. In some others the party acting on the defensive took the first step, with the intention of getting an advantage over his adversary, or the injured party delayed taking decisive steps until after the other party had done a hostile act, in the hope of an accommodation.

But with all the looseness of practice in regard to declarations of war, we find a claim made that prizes taken before a declaration ought to be put on distinct ground from those made afterwards. In the war of Great Britain with France, in and after 1756, the latter strove to make a difference between war in America and war in Europe, and demanded the restoration of prizes in the European waters. This was after the instructions to the British Admiral to fight with the French fleet sent to America, wherever he should find it, were communicated to the French ambassador at London, and he had replied that his king would regard the first gun fired as a declaration of war.

On the whole, the great looseness of the eighteenth century in regard to the initial steps of war showed a want of honor, and enabled certain wars, which were waged before redress was sought, to appear the less worthy of condemnation.

What notice

war ought to

§ 122.

But if a declaration of war is no longer necessary, a state which enters into war is still bound (1) to indicate of a state of in some way, to the party with whom it has a diffibe given? culty, its altered feelings and relations. This is done by sending away its ambassador, by a state of non-intercourse, and the like. (2.) It is necessary and usual that its own people should have information of the new state of things; otherwise their persons and property may be exposed to peril. (3.) Neutrals have a right to know that a state of war exists,

and that early enough to adjust their commercial transactions to the altered state of things; otherwise a great wrong may be done them. Such notice is given in manifestoes. "These pieces," says Vattel, "never fail to contain the justificative reasons, good or bad, for proceeding to the extremity of taking up arms. The least scrupulous sovereign would be thought just, equitable, and a lover of peace; he is sensible that a contrary reputation might be detrimental to him. The manifesto implying a declaration of war, or the declaration itself, which is published all over the state, contains also the general orders to his subjects relative to their conduct in the war." 1

§ 123.

Now

state of war.

The old strict theory in regard to a state of war was that each and every subject of the one belligerent is at Effects of a war with each and every subject of the other. as it was also a received rule that the persons and goods of my enemy belong to me if I can seize them, there was no end to the amount of suffering which might be inflicted on the innocent inhabitants of a country within the regular operations of war.2 It is needless to say that no Christian state acts on such a theory, nor did the Greeks and Romans generally carry it out in practice in its extreme rigor. In particular there is now a wide line drawn between combatants and non-combatants, the latter of whom, by modern practice, are on land exempted from the injuries and molestations of war, as far as is consistent with the use of such a method of obtaining justice.

the enemy.

It follows, however, clearly from the notion of war as an interruption of peaceful intercourse, that all com- Non-intermerce between the subjects of the belligerents is un- course with lawful, unless expressly licensed, or necessary for the war itself. Hence partnerships with an enemy are dissolved, 1 Vattel, Book iii., 4, § 64.

2 Comp. Kent, i., 64, Manning, ed. 2, p. 166, for a somewhat opposite view, which depends on a harsh, legal theory. If war is a condition of non-peace, there may be active and passive persons in this condition The latter are the inhab

itants who have no share in hostilities.

and all power of prosecuting claims through the courts of the enemy is suspended during the war; all commercial transactions with the subjects or in the territory of the enemy, of whatever kind, except ransom contracts (§ 150), whether direct or indirect (as through an agent or partner who is a neutral), become illegal and void. In the case where the business is conducted by a neutral partner, his share in the concern alone is protected, while that of the belligerent's subject is, if seized, liable in his own country to confiscation. (Comp. § 183.)

License to trade with the enemy.

It is not unusual, however, for a belligerent to grant to its own subjects a license to carry on a certain specified trade with the enemy, which, if the other party allows it, becomes a safe and legitimate traffic. It is common, also, for the subjects of one belligerent to obtain such a license from the other; but, of course, this of itself will not protect them against the laws of their own country. (Comp. § 155.)

Enemy's

enemy's

property within a bel

ligerent's

country.

§ 124.

From the strict theory of hostile relations laid down above, it would follow, (1) that an enemy's subjects within subjects and the country would be treated as prisoners of war; but such rigor is unknown, unless in measures of retaliation. The most severe treatment of the foreigner allowed by modern usage is to require him to leave the country within a certain time.1 (2.) That enemies' property within the country at the breaking out of a war was liable to confiscation. This principle would apply also to debts due to them at that time.2 And it would be a further application

1 Bonaparte in 1803, upon the rupture with England after the peace of Amiens, ordered the arrest of all Englishmen in France between sixteen and sixty years of age, that they might serve as hostages for such Frenchmen as might be captured on board of French vessels after the breach of peace and in ignorance of it. The Batavian republic was bidden to issue the same order. (Garden, viii., 151.)

2 In a case that came before the Supreme Court of the United States, on appeal, in October, 1877, debts due by a person in Virginia to a firm in Philadelphia were, during the existence of the Confederacy, paid over to a receiver, after sequestration by decree of a district Confederate court. The firm sued to recover the debt. The court of the United States denied that the Confederacy was a de

of it, if shares in the public stocks, held by a foreign government, were confiscated. With regard to the two former cases, the Supreme Court of the United States has decided, in accordance with the body of earlier and later text-writers, that by strict right such property is confiscable, but they add that such a measure requires the sanction of the national legislature, which, it is to be hoped, will never consent to disgrace the country by an act of that kind.1 For the usage is now general, if not fixed, with the single exception of measures of retorsion, to allow the subjects of the enemy to remain within the territory during good behavior, in the enjoyment of their property, or to give them, by public proclamation, reasonable time to remove with their effects from the country. The English and French in the late Crimean war allowed Russian vesvels six weeks' time to leave their ports and reach their destination. In many cases treaties have given additional security to the goods, claims, and persons of enemies' subjects so situated. The treaty of 1794, between the United States and Great Britain, often called in the United States Jay's, from its American negotiator, declared it to be unjust and impolitic to confiscate debts due to the subjects of a nation that has become hostile.2 It was also stipulated in this instrument that the citizens of either power might remain unmolested during war, in the dominions of the other, so long as they should behave peaceably, and commit no offense against the laws; and facto government; pronouncing that the law of confiscation was passed without authority, and that, although persons having property in their possession may sometimes be freed from liability for giving it up on account of the force put upon them, yet, since debts are not tangible things, “the debtors cannot claim release from their creditors by reason of the coerced payment of similar sums to an unlawful combination."

1 Comp. Kent, i., Lect. 3, p. 59 seq.

2 In Article X. it is provided that "neither debts due from individuals of the one nation to individuals of the other, nor shares nor monies which they may have in the public funds or in the public or private banks, shall ever, in any event of war or national difference, be sequestered or confiscated; it being unjust and impolitic that debts and engagements, contracted and made by individuals having confidence in each other and in their respective governments, should ever be destroyed or impaired by national authority on account of national differences and discontents."