bus. And, by the Roman laws, he was reckoned guilty of high treason, who, with commission from the prince, presumed to make war, muster soldiers, or raise an army. And the Cornelian law, enacted by L. Cornelius Sylla, says: "Without commission from the people.' In the code of Justinian there is a constitution extant, made by Valentinian and Valens, thus: 'Let no man dare to raise an army without our knowledge and advice.' To this we may refer that of St. Austin, natural order, accommodated to the peace of mankind, requires this, that the authority and council of raising war should be in the power of princes. * * But if the danger be so pressing, that time will not allow to consult the supreme magistrate, here necessity grants an exception. L. Pinarius, governor of Enna, a Sicilian garrison, presuming on this right, upon certain information, that the townsmen designed to revolt to the Carthagenians, preserved the place by putting them to death. Franciscus de Victoria has pretended to transfer the right of making war to the citizens even beyond such a necessity, to revenge those injuries which the king neglects to adjust, but his opinion is justly rejected by others."" (Burlamaqui, Droit de la Nat. et des Gens, tome 5, pt. 4, ch. 3; De Felice, Droit de la Nat., etc., tome 2, lec. 22; Hale, Pleas of the Crown, vol. 1, p. 162; Grotius, De Jur. Bel ac Pac., lib. 1, cap. 3, § 4; Puffendorf, Jus. Nat. et Gent., lib. 8, ch. 6, § 9; Wildman, Int. Law, vol. 3, p. 3; Phillimore, On Int. Law, vol. 2, § 66.)

§ 28. The question has sometimes arisen how far the hostile acts of a subordinate officer, as, for instance, the governor of a province, is to be regarded as the act of his sovereign or state; and how far the officer is to be held individually responsible. The most approved and reasonable doctrine is that, if the act is ratified by his government, or rather, is not disclaimed, the government is responsible; otherwise, it becomes an individual act, and the guilty party should be surrendered up for punishment. Burlamaqui says: "A mere presumption of the will of the sovereign would not be sufficient to excuse a governor, or any other officer, who should undertake a war, except in the case of necessity, without either a general or a particular order." "Whatever part the sovereign would have thought proper to act, if he had been consulted,

* * *

and whatever success the war undertaken without his order may have had, it is left to the sovereign whether he will ratify or condemn the act of the minister. If he ratifies it, this approbation renders the war solemn, by reflecting back, as it were, an authority upon it, so that it obliges the whole commonwealth, But if the sovereign condemn the act of the governor, the hostilities committed by him ought to pass for a sort of robbery, the fault of which, by no means, affects the state, provided the governor is delivered up or punished according to the laws of the country, and proper satisfaction be made for the damage sustained." (Burlamaqui, Droit de la Nat. et des Gens, tome 5, pt. 4, ch. 3; The People v. Mc Cloud, 25 Wendell, Rep., p. 552; Puffendorf, Jus Nat. et Gent., lib. 8, cap. 6, §§ 10, 11; De Felice, Droit de la Nat., etc., tome 2, lec. 22.)

§ 29. Vattel divides all hostile collisions between nations, into "two sorts of wars, lawful and unlawful." Unlawful wars are those undertaken "without apparent cause," and for "havoc and pillage," and all which do not come under this head are classed as lawful wars. Unlawful wars are such as were waged by the "Grandes compagnies," which had assembled in France during the wars with the English; armies of banditti which ranged about Europe purely for spoil and plunder. Such were the cruises of the fillibusters, without commission, and in time of peace; and such, in general, are the depredations of pirates. To the same class belong almost all the expeditions of the African corsairs, though authorized by a sovereign, they being founded on no apparent just cause, and whose only motive is the avidity of captures. I say these two sorts of war, lawful and unlawful, are to be carefully distinguished, their effects, and the rights arising from them, being very different. (Vattel, Droit des Gens, lib. 3, ch. 4, § 67; Tallmadge, Review, etc., 26 Wendell, Rep., p. 668; De Felice, Droit de la Nat. et des Gens, tome 2, lec. 22.)

§ 30. Writers on international jurisprudence very properly distinguish between unlawful and unjust wars. Where the war is duly declared or begun, and carried on by the proper authority of the State, it is a lawful war, and, by the voluntary law of nations, is regarded as a just war so far as the belligerent rights of the parties are concerned. Vattel com

pares the State that carries on an unjust war to the individual who refuses to pay his honest debts, on the ground of prescription. This rule of civil law is made for the general benefit of community, although it may at times enable the individual to offend against his duty. So of the law of nations. In order to avoid, as far as possible, the evils of human society, it is agreed to regard every lawfully declared war as just on both sides. But, says Vattel, “We are never to forget that this voluntary law of nations, which is admitted from necessity, and to avoid greater evils, does not give to him whose arms are unjust a genuine right, capable of justifying his conduct, and acquitting his conscience, but only the external effect of the law, and impunity among men." (Vattel, Droit des Gens, liv. 3, ch. 12, §§ 188–192; Burlamaqui, Droit de la Nat. et des Gens, tome 5, pt. 4, ch. 3; Bello, Derecho Internacional, pt. 2, cap. 1, § 2; Heffter, Droit International, § 119; De Felice, Droit de la Nat., etc., tome 2, lec. 22.)

§ 31. It has already been shown, in speaking of seizures and reprisals, that the hostile acts of individuals, when ratified and assumed by their government, are to be regarded as the hostile acts of the state. These acts may be of the character of reprisals, or of mixed or imperfect war, or of a virtual declaration and commencement of solemn war. Such acts, however, must not exceed what the laws of war have established as belligerent rights of the subjects of hostile states. For anything done in violation of the laws of war, the individual is liable to punishment. So, also, for any act within the rules of war, not authorised or assumed by his government, as the act of the state. The distinction between the two cases is manifest, and should never be lost sight of; the latter is punishable by the rules of civil law, while the former is an offense against the law of nations, punishable only by the laws and usages of war. The taking of property, and of human life, in the one case, would be robbery and murder, punishable under the local laws; while in the other case, the same acts might be fully justifiable as the lawful exercise of belligerent rights under the law of nations. (Vide Ante, chap. 12; See Opinions U. S. Att'ys Genl., vol. 1, p. 81; Carrington et al. v. C. Ins. Co., 8 Peters Rep. p. 522; Tallmadge Review, etc., 26 Wendell Rep., App., p. 674; Vattel, Droit

des Gens, liv. 3. ch. 2, § 187; Rutherforth, Institutes, b. 2, ch. 9, § 18; Burlamaqui, Droit de la Nat. et des Gens, tome 5, pt. 4, ch. 3; Phillimore, On Int. Law, vol. 3, §§ 38, 92; Thorshaven and its Depend., 1 Edw. Rep. p. 102; Brown v. The United States, 8 Cranch. Rep., pp. 132–134; Heffter, Droit Internacional, § 119.)

CHAPTER XV.

DECLARATION OF WAR AND ITS EFFECTS.

CONTENTS.

1. By whom war is to be declared - 2. Ancient modes of declaring it83. Modern practise of unilateral declaration - 4. When this may be dispensed with — § 5. Conditional declaration —¿6. Offers after declaration 7. Object of declaration in defensive war - 28. Effect upon individuals 9. On commerce, contracts, etc. - 10. Carrying supplies and withdrawing goods - 11. Single exception to rule of non-intercourse

12. Effect upon subjects of an ally - 13. Subjects of enemy in territory of belligerents - 14. Laws of particular states - 15. Enemy's property in territory of belligerents — 16. Conduct of belligerents in war of 1853-4 - 17. Debts due to subjects of an enemy - 18. Opinions of Kent and Wheaton 19. Distinction made by England between debts and other property20. Her conduct toward Denmark in 1807-21. Commencement of war, how determined - 22. How notified to neutrals - 23. Effects of declaration of war on treaties - 24. On local civil laws — § 25, Martial and military law - 26. Martial law in European countries 827. U. S. Constitution on suspension of writ of habeas corpus 28. Examples of its suspension - 29. Powers and duties of the President-30. Exercise of power to declare martial law.

§ 1. The right of making war, as well as the right of authorizing retaliations, reprisals, and other forcible meaus of settling international disputes, belongs, in every civilized nation, to the supreme power of the state, whatever that supreme power may be, or however it may be constituted. As states are known to each other only through their constituted