her cargo, which had been condemned by an inferior court on the ground of being contraband of war, should be restored, because there was no war, and therefore no contraband of war. The vessel and the rest of the cargo had been exempted from the decision of the lower court on the ground of the want of special notification. 3d. These transactions had the characteristics of war, although of a war that was partial or local, and for the most part of little duration. A war may be waged on one element and not on the other, or may spend its force chiefly upon one point, or may last for a short time-six weeks, for instance. Such a war is not taken out of the ordinary category. 4th. The right of blockade is one affecting neutrals, and a new kind of exercise of this right cannot be introduced into the law of nations without their consent. The rights most analogous, civil and hostile embargo, may be said to be dying out, and neutrals have not given their consent to this new form of restriction of their rights. They would, if such a practice were continued, regard a pacific blockade as an act of war under a wrong name, or claim damages for all injury thereby inflicted on their commerce, which only war rights can interfere with. In concluding this subject, we notice a transaction which may be introduced by a threat, or threatening measures deserving the name of a conditional declaration of war, or contingent war, and which resembles pacific blockade. An instance will show the nature of such cases. Before any declaration of war against Spain, Admiral Hosier, in 1726, obtained the release of two English vessels detained in the West Indies, prevented the sailing of Spanish galleons from Porto Bello, and gave leave to provision ships of the Spaniards to start on their way, on condition of their taking out neither plate nor fruits. Spain chose to consider this as war, while England regarded it a measure of security; but Spain, being unprepared, only complained for nearly half a year, and the ambassador at London declared that the longer continuance of the squadron in the West Indies, would be a continuance of vol untary hostilities authorized by the English sovereign, and his king, he said, would look on them as such. Still, Hosier was not ordered to withdraw, and the Spaniards began to besiege the fort of Gibraltar. They killed over three hundred British soldiers, and reprisals were not ordered by England until afterwards. Nor even then did they call it a war. Preliminaries of peace, however, were made between the parties, including their allies, at Paris and Vienna, in 1727. (See Dumont, viii., 2, 146, for the Convention of Paris.) In such transactions, there is real war without declaration, as Mr. Ward, the historian, justly maintains in his "inquiry into the manner in which different wars in Europe have commenced," etc., pp. 23-28 (London, 1805). The party injured has a right in such cases to regard the condition of things as one of war, and neutral states, in the event of a so-called pacific blockade, would have an equal right to claim that a state of war existed. Thus, when such an occurrence takes place, we have this sin>gular state of things offered to us: the nation injured and the neutrals declaring that there is war, the nation using the violence, that there is not. Surely a state of peace can never involve such contradictions. Commence ment of war. Declaration. § 120. War between independent sovereignties is, and ought to be, an avowed open way of obtaining justice. For every state has a right to know what its relations are towards those with whom it has been on terms of amity, whether the amity continues or is at an end. It is necessary, therefore, that some act show in a way not to be mistaken that a new state of things, a state of war, has begun. The civilized nations of antiquity generally began war by a declaration of their purpose so to do. Among the Roman prac- Greeks, a herald, whose person was sacred and inviolate, carried the news of such hostile intent to the enemy, or accompanied an ambassador to whom this business was committed. Only in rare cases, when men's passions were up, was war ȧKýpuктos, i. e., such, that no communica Greek and tice. tions by heralds passed between the enemies. Among the Romans the ceremonies of making known the state of war were very punctilious. This province belonged to the Fetiales, a college of twenty men, originally patricians, whose first duty was to demand justice, res repetere, literally to demand back property, an expression derived from the times when the plunder of cattle or other property was the commonest offense committed by a neighboring state. Three or four of the college, one of their number being pater patratus for the time, and so the prolocutor, passed the bounds of the offending state, and in a solemn formula, several times repeated, demanded back what was due to the Roman people. On failure to obtain justice, there was a delay of three and thirty days, when the pater patratus again made a solemn protestation that justice was withheld. Then the king consulted the senate, and if war was decreed, the pater patratus again visited the hostile border, with a bloody lance, which he threw into the territory, while he formally declared the existence of the war. This custom, which seems to have been an international usage of the states of middle and southern Italy, continued into the earlier times of the republic; but when the theatre of war became more distant, the fetialis, consul, or prætor, contented himself with hurling his lance from a pillar near the temple of Bellona in the direction of the hostile territory, while the declaration of war itself was made by the military commander of the provinće through an ambassador. It was thus always a principle with the Romans, as Cicero ("De Officiis," i., 11) has it, "Nullum bellum esse justum, nisi quod aut rebus repetitis geratur, aut denuntiatum ante sit et indictum." But the form satisfied them, and they cared little for the spirit.1 So also in the Middle Ages, war could not be honorably begun without a declaration; but the spirit which Mediæval dictated this, seems to have been, as Mr. Ward practice. remarks, rather a knightly abhorrence of everything under 1 For the Greeks, see Schömann, u. s. For the Romans, Osenbrüggen, pp. 2784, Bekker-Marquardt, Röm. Alterthüm., iv., 380-388. handed and treacherous, than a desire to prevent the effusion of blood by giving the enemy time to repair his fault. Even in the private warfare which characterized that age, as much as in the duel, a challenge or formal notice to the enemy was necessary. The declaration of war was made by heralds or other messengers: that of Charles V. of France against Edward III., was carried to that king by a common servant, the letter containing it bearing the seals of France. Such formal challenges were sanctioned by law. Thus the public peace of the Emperor Barbarossa, in 1187, contains the clause that an injured party might prosecute his own rights by force, provided he gave to his adversary three days' notice that he intended. to make good his claims in open war. And the Golden Bull of the Emperor Charles IV. in 1356, forbids invasions of the territory of others on pretext of a challenge unless the same had been given for three natural days to an adversary in person, or publicly made known before witnesses at his usual place of residence; and this, on pain of infamy, just as if no challenge had been offered.1. Modern practice. The modern practice ran for some time in the same direction, but since the middle of the eighteenth century formal declarations have extensively not been made, and are falling into disuse. Instances of the same may be gathered from still earlier times. Thus no declaration preceded the expedition of the Grand Armada in 1588,- before which indeed a state of hostilities existed in fact, and the war between England and Holland, in 1664, began with an act of the English Council, authorizing general reprisals, which became a full-blown war without any declaration. Thus also the war of Orleans, so called, was begun by Louis XIV. in 1688, before he issued his manifesto; in the war of the Austrian succession the battle of Dettingen had been fought before the French declared war against Great Britain and Austria; and in the Seven Years' War hostilities began on this continent between England and France two years 1 Ward, ii., 211 seq. The passage is in Ölenschlager's ed. of the Golden Bull, ch. 17. (Frankf. 1766.) before the parties to this important war made their declarations.1 usage. This disuse of declarations does not grow out of an intention. to take the enemy at unawares, which would imply Reasons for an extreme degradation of moral principle, but out of the modern the publicity and circulation of intelligence peculiar to modern times. States have now resident ambassadors within each other's bounds, who are accurately informed in regard to the probabilities of war, and can forewarn their countrymen. War is for the most part the end of a long thread of negotiations, and can be generally foreseen. Intentions, also, can be judged of from the preparations which are on foot, and nations have a right to demand of one another what is the meaning of unusual armaments. It is, also, tolerably certain that nations, if they intend to act insidiously, will not expose their own subjects in every quarter of the globe to the embarrassments of a sudden and unexpected war. And yet the modern practice has its evils, so that one cannot help wishing back the more honorable usage of feudal times. This rule, be it observed, of declaring war beforehand, so long as it was thought obligatory, only bound the assailant. The invaded or defensive state accepted the state of war as a fact, without the formalities of a declaration.2 § 121. Declaration tinued. Grotius considered a denuntiatio belli to be necessary for the reason that the war might appear manifestly to be a public one, waged by the public authority. The de- of war connuntiatio might be conditioned on refusal to render justice or unconditioned. In order that a war should be just, i. e., should be a war capable of jural consequences, it should be publicly decreed, "et quidem ita decretum publice ut ejus rei significatio ab altera partium alteri facta sit." No denunti1 Comp. Bynkersh., Quæst. J. P., i., 2, and among modern systematists Phillimore, iii., 75-102. 2 Under a government like that of the United States, when an Act of Congress creates a state of war, a formal declaration is needless. War begins with a legislative act. And the passage of this can generally be foreseen. |