of War, purporting to be printed by the King's printer, are allowed to be evidence of such articles (i). In the Case of the Nayade, which has been already cited (k), Lord Stowell decided that War might exist, so far as the rights of a third State were concerned, between two other States without any formal declaration; the point is perhaps not so clear when the question is between two States, one of which only has declared War, and of which declaration the other State has taken no public cognizance. This is a question rather of Public than International Law, but it should be mentioned that in a subsequent case in 1812, in which a question arose about the capture of a Swedish vessel by a British ship, Lord Stowell observed"The point on which the captors rely for condemna"tion in the present case is, the legal incapacity of the "claimants in their real character to carry on the trade "in which they had engaged. What was the relative "situation of British and Swedish subjects at the time "when this capture took place? Sweden had issued a "declaration of War against this country, but that had "not been echoed by any counter-declaration on the part of Great Britain; neither had the British Govern"ment caused any notification to be made to its own "subjects respecting the fact of the Swedish procla"mation. It might, perhaps, be a question of some "nicety, to determine how far this unilateral declaration, "not acted upon or even notified to them by the Govern"ment of their own country, would affect the right of "British subjects to carry on their accustomed inter"course with the ports of Sweden " (1). Lastly, I should observe that I am unable to agree with the learned and able Calvo (m) that a formal declaration of War (i) Russell on Crimes, vol. ii. p. 805. (k) Vide ante, p. 86. (1) The Success, 1 Dodson's Adm. Rep. 133. (m) Le Droit Inter. t. ii. p. 33. ed. 1872. must precede the beginning of hostilities. This opinion is founded on the theory that the declaration of Paris (1856) has altered the previously existing usage and practices (n) which constitute the law on this subject. This opinion seems to me, at present, as incorrect as it would be to maintain that nations are obliged by that declaration to submit their disputes to arbitration. (n) Vide ante, p. 50, and vol. i. part i. c. 3. VOL. III. I CHAPTER VI. HOW WAR AFFECTS THE RELATIONS OF ALL STATES. LXVII. WAR effects a change in the mutual relations of all States; more immediately and directly in the relations of the belligerents and their allies, but mediately and indirectly in the relations of States which take no part in the contest. War, of necessity, brings with it new rights to the belligerent and new obligations to the neutral. It is not, as it is sometimes inaccurately expressed, that there ensues a collision between the rights of the two parties, because a collision of rights is, accurately speaking, impossible, but that the rights of the neutral were always subject to the contingency of being affected and modified by War; for "every duty is a limitation of some power" (a). And as War is a lawful mode of obtaining redress and adjusting differences between Independent States, and as this end requires that compulsory means of destruction and distress should be inflicted upon the persons and property of the enemy (b), no Neutral State has a right, for the sake of private advantage, to prevent these compulsory means from producing their effects. It matters not whether the War be called offensive on the one side, and defensive on the other. It may happen that (a) Burke: Appeal from the New to the Old Whigs. Burke's Works, vol. ix. p. 202. (b) "Neque enim bellum gerere, quicquam aliud est, quam id, quod quis sibi deberi existimat, manu extorquere ab invito et renitente Principe vel Populo."-Bynk. Q. J. P. 1. i. c. iv. the nominally offensive is the really defensive War,--that the first blow has been struck by way of defence to ward off a menaced and anticipated blow, nor does it matter upon which element, earth or water, the War be carried on, -the rules and principles of War, the rights of belligerents and the duties of the neutral are the same, whether the War be called offensive or defensive, and whether it be carried on by sea or by land. In the case, indeed, of an ally, bound to assist when his. friend is attacked, but not always when he attacks, the casus fœderis may, as will be seen hereafter, be affected by the fact, whether the War be offensive or defensive on the part of the friend. But as, owing partly to the fact of the establishment of International Courts of Prize, and-till lately-of the non-establishment of similar Courts of Booty (c), and partly to the reason of the thing, arising from the character of warfare by sea, it has happened that the maritime intercourse of nations during War has been subject to a code of more detail and more precision than the intercourse by land, it will therefore be convenient to consider the questions relating to belligerent rights at sea, apart and distinct from those on land, though the principles of public policy and public law are, as Lord Stowell observed, "just "as weighty upon the one element as the other" (d). LXVIII. We must now proceed to consider the effect of War upon 1. The property and persons of the subjects of the belligerent State. 2. The property and persons of the subjects of the ally. 3. The property and persons of the subjects of the enemy. 4. The property and persons of the subjects of the neutrals. LXIX. First, as to the effect of War upon the property and persons of the subjects of the belligerent. The cardinal maxim of law, which meets us on the thresh (c) Vide post, the Banda and Kirwee case. old, and which most materially affects the whole question, is this, that the will of the subject is bound up in that of his Government, or of the Government of the country in which he is domiciled, as to matters of trade (e), so far as Public and International Law are concerned with the question (f). The leading case on this subject is the Hoop (g), which contains a review of the law of all countries on this important subject. Lord Stowell supports his opinion, that by the Law of England all trading with the public enemy is interdicted, by the following argu ment: "In my opinion, there exists such a general rule in the "maritime jurisprudence of this country, by which all "trading with the public enemy, unless with the permission "of the Sovereign, is interdicted. It is not a principle peculiar to the maritime law of this country; it is laid "down by Bynkershoek as an universal principle of law"Ex naturâ belli commercia inter hostes cessare "dubitandum. 66 non est Quamvis nulla specialis sit commerciorum prohibitio, ipso tamen jure belli commercia esse vetita, ipsæ "indictiones bellorum satis declarant, &c. He proceeds to "observe, that the interests of trade, and the necessity of "obtaining certain commodities, have sometimes so far overpowered this rule, that different species of traffic have "been permitted prout e re suâ subditorumque suorum esse "censent principes. But it is in all cases the act and per"mission of the Sovereign. Wherever that is permitted, "it is a suspension of the state of War quoad hoc. It is, "as he expresses it, pro parte sic bellum, pro parte pax inter "subditos utriusque principis. It appears from these passages "to have been the law of Holland; Valin, l. iii. tit. 6. art. 3., (e) The Indian Chief, 5. Rob. Adm. Rep. 19. "A criminal transaction on the common principle that it is illegal in any person owing an allegiance, though temporary, to trade with the public enemy." (f) The Santa Cruz, 1 ib. 61. (g) The Hoop, 1 ib. 198. |