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alone were reputed enemies against whom the Roman people had publicly declared war. During the middle ages, a previous declaration of war was held to be requisite by the laws of honour, chivalry, and religion. Lewis IX. refused to attack the Sultan of Egypt until he made a previous declaration to him by a herald at arms, and one of his successors sent a herald with great formality to the Governor of the Low Countries, when he declared war against that power in 1635. But, in modern times, the practice of a solemn declaration made to the enemy, has fallen into disuse, and the nation contents itself with making a public declaration of war within its own territory, and to its own people. The jurists are, however, divided in opinion, in respect to the necessity or justice of some previous declaration to the enemy in the case of offensive war. Grotius considers a previous demand of satisfaction, and a declaration, as requisite to a solemn and lawful war; and Puffendorf holds acts of hostility, which have not been preceded by a formal declaration of war, to be no better than acts of piracy and robbery. Emerigon' is of the same opinion; and he considered the hostilities exercised by England in the year 1755, prior to any declaration of war, to have been in contempt of the law of nations, and condemned by all Europe. Vattel strongly recommends 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.
Bynkershoeck has devoted an entire chapter to this ques
a 1 Emerigon, Traité des Ass. p. 561.
b B. 1. c. 3. sec. 4.
c B. 8. c. 6. sec. 9.
d Traité des Ass. tom. 1. p. 565.
e B. 3. c. 4. sec. 51.
tion, and he maintains, that a declaration of war is not 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 two last centuries, wars have been frequently commenced without a previous declaration. Since the time of Bynkershoeck, 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. Since 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 recognised, 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, 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 immediately commenced on our part
a Quæst. J. Pub. b. 1. c. 2.
b Sir Wm. Scott, 1 Dodson's Adm. Rep. 247.
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, of 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 apprize 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, 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.
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 State of war own government, and a war between the governments of jects 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 ations concur in the doctrine, that 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. Very important consequences concerning the obligations of subjects are deducible from this principle.
a B. 3. c. 4. sec. 64.
b Grotius, b. 3. c. 3. sec. 9.-c. 4. sec. 8. Burlamaqui, part 4. c. 4. sec. 20. Vattel, b. 3. c. 5. sec. 70.
Enemy s pro- When hostilities have commenced, the first objects that the country. 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 Bynkershoeck, 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 Bynkershoeck lays down this, as well as other rules of war, with great harshness and severity, he mentions several instances arising in the 17th, and one as early as the 15th 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. Emerigon 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 later publicists, is in conformity with that provision. The sovereign who declares war, says Vattel, can neither detain those subjects of the enemy who are within his dominions at the time of the declaration of war, nor their effects. They came into the country under the sanction of public faith. By permitting them to enter his territories, and con
a Grotius, b. 3. c. 9. sec. 4.-c. 21. sec. 9. Bynk. Quæst. Pub. J. 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.
c Tom. 1. p. 567.
d Vattel, b. 3. c. 4. sec. 63.
Azuni, part 2. c. 4. art. 2. sec. 7. Le Droit Public de l'Europe, par Mably, Euvres, tom, 6. p. 334.
tinue 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." Sir Michael Foster" 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 rigours 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, that, upon the breaking 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 be known how English merchants were treated by the enemy; and "if our
a Vattel, b. 3. c. 4. sec. 63.
b Discourse of High Treason, p. 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.
d Ch. 30. VOL. I.