« PreviousContinue »
coin a tender in payment of debts, or pass any
bill of attainder," etc.
The dogma of independent state sovereignty has been adhered to with a pertinacity, which (in view of the carefully expressed and unambiguous provisions of the constitution of the United States, requires no ordinary degree of charitable forbearance to designate as honest), until at length it has brought forth its legitimate and bitter fruit, in a foolish, and wicked, and causeless rebellion of those states whose leaders have adopted it, and which can only be happily terminated by the utter extinction of this pernicious heresy.
in early ages.
Formal declaration consid
In the early ages of political societies, a war comered requisite menced without a solemn declaration, was consid
ered informal and irregular, and contrary to the established usage of nations. It was so iegarded down even to the time of Grotius, who, admitting that a declaration was not required by the law of nature, declares, nevertheless, that the law of nations demands it. The Romans granted no triumphs for any war which was not preceded by a formal declaration. During the era of chivalry, the rules of which required the fullest notice of intention to an adversary, that he might have abundant opportunity to prepare for his defence, declarations of war were heralded and proclaimed with the greatest solemnity, and clothed with all those formalities which the habits of knighthood had carried into the customs of general warfare. With the decline of chivalry such declarations were gradually discontinued, although Clarendon, in his
Grotius, De Jure, Lib. III., c. iii, $ 6.
History on the Rebellion, speaks in terms of censure of the war in which the Duke of Buckingham went to France, as entered into “without so much as the formality of a declaration by the king, containing the ground and provocation and end of it, according to custom and obligation in the like cases.
Puffendorif;" Vattel, Emerigon,* each contend for the necessity of a public declaration before the commencement of a war, as required not only by the law of nations but by justice and humanity; and the former holds acts of hostility not preceded by a formal declaration of war, to be acts of piracy and robbery. Bynkershoek, however, maintains that the law of nations does not require a declaration of war to precede the act, and cites numerous precedents to sustain his position.
Such is the modern doctrine, and the well settled No declaration practice of the nations of Europe as well as of the the existing United States.
“War," says Lord Stowell,“ may lawfully exist without a declaration on either side. It is so laid down by the best writers on the law of nations."
In the war declared by the United States against Great Britain in 1812, hostilities were commenced by the United States, immediately upon the passage of the act of Congress, and without waiting to communicate any notice of intention to the English government. But although no previous declaration Proclamation of intention to the adversary, be required as a jus- requisite for tification of hostilities, yet such a declaration, by and guidance public act, proclamation, or manifesto, is essentially neutrals.
law of nations.
of citizens and
Claren, Hist. Reb., Vol. I., p. 40. Book VII., c. vi., $ 9 * Book III., c. iv., $ 51. Traite des Assurances, I., 563. 5 Quest Jur. Pub. Lib. I., c. ii. • The Eliza Ann, 1 Dodson, 247.
necessary for the instruction and direction of the citizen, whose individual rights are materially affected, as the direct result of a war in form. Without such a declaration, too, it would be impossible to determine, whether the rights of the citizen are impaired, as a legitimate effect of war, and for which no redress can be demanded in a treaty of peace, or whether the injuries that he has sus. tained are such as to demand reparation.
But not only is such a declaration requisite for the information and direction of the citizen, but it is equally necessary for the instruction of the citizens or subjects of neutral powers.
The knowledge of the existence of hostilities between belligerents, imposes upon neutrals certain duties and obligations, the strict observance of which alone entitles them to that protection in person and property, which is accorded to those who, in time of war, take no part in the contest, but remain common friends of both parties, without favoring the aims of the one to the prejudice of the other.
By the constitution of the United States, war of Congress is cannot lawfully be commenced against a foreign a formal decla- power, without an act of the Congress of the nation,
and such an act undoubtedly operates as a formal
Chancellor Kent, “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 own government, and a war between the
In the United
· Haz. & Roch. Mar. Law, 8.
• Kent's Com., Vol. I., p. 63.
governments of 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 nations 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."
Individual inclinations, prejudices, or partialities, must be subjected to, and controlled by, the determination of the government. The practical recog. nition of this principle cannot, with safety, be disregarded by the citizen.
Since the disuse of formal declarations of war, Legal commany disputes and difficulties have arisen, in the adjustment or enforcement of individual rights or obligations, from the impossibility of determining the precise date of the commencement of hostilities. Such difficulties are obviated by the constitutional provision of the United States government, which vests the war making power in the Congress alone. The date of the act of Congress, therefore, furnishes the precise period of the commencement of the peculiar duties and obligations which a condition of war imposes on the citizen. · Modern treaty stipulations between the several European nations, providing that “a rupture of pacific relations shall be regarded as having taken
mencement of hostilities.
Lord Stowell, 1 Robinson, 118.
place at the date of recall or dismissal of the respective ambassadors," have sought to avoid the embarrassments resulting from the absence of a formal declaration.
Who are lawful belligerents.
Whether any other than sovereign independent nations at war with each other, can be considered as lawful belligerents, with the rights and privileges of belligerent powers, seems not to have been made a subject of discussion by any of the elementary
writers upon the law of nations. Importance of The question assumes no inconsiderable importthe question in
ance, in connection with the rebellion against the war in the U. constitutional government of the United States of
America, which has arisen among the people in the southern portion of the country, who, by the singular forbearance of the national government, have been enabled to seize the unprotected property of the nation, consisting of forts, arsenals, mints, custom houses, etc., erected and established among them, together with the arins, munitions of war, moneys, etc., contained therein; and having pretended to establish an independent confederacy, with all the paraphernalia of à sovereign nation, have levied armies to oppose the aroused determination of the nation to crush the insurrection, and have issued letters of marque and reprisal as a lawful belligerent, by means of which to inflict a blow upon the commerce of the country, which almost exclusively exists in that portion which remains loyal to the constitutional government.
The public documents directly relating to this
De Marten's Supp., vii., 213; id. x., 870; id. xi., 471, 483, 613.