legislature of the Union; and the presumption is, that nothing short of a strong case deeply affecting our essential rights, and which cannot receive a pacific adjustment, after all reasonable efforts shall have been exhausted, will ever prevail upon Congress to declare war.

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It has been usual to precede hostilities by a public declaration communicated to the enemy. It was the custom of the ancient Greeks and Romans to publish a declaration of the injuries they had received, and to send a herald to the enemy's borders to demand satisfaction, before they actually engaged in war; and invasions without notice were not looked upon as lawful. (b) War was declared with religious preparation and solemnity. According to Ulpian, (c) they * 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 honor, chivalry, and religion. Louis 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 Spain, in 1635. (a) 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 (b) considers a previous demand of satisfaction and a declaration as requisite to a solemn and lawful war; and Puffendorf (c) 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 (d) 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

(b) Potter's Antiquities of Greece, b. 3, c. 7; Livy, b. 1, c. 32; Cic. de Off. b. 1, c. 11; De Repub. lib. 3.

(c) Dig. 49. 15. 24. Cicero says that under the Roman kings it was instituted law that the war was unjust and impious. unless declared and proclaimed by the heralds under religious sanction. De Repub. lib 2, 17

(a) Emerigon, Traité des Ass. i. 561.

(c) B. 8, c. 6, sec. 9.

(b) B. 1, c. 3. sec. 4.

(d) Traité des Ass i. 563.

all Europe. Vattel strongly recommends (e) 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.

Bynkershoek has devoted an entire chapter to this ques54 tion, (f) 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 last two centuries wars have been frequently commenced without a previous declaration. Since the time of Bynkershoek, 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. (a) After 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 recognized 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 imme(f) Quæst. J. Pub. b. 1, c. 2.

(e) B. 3, c. 4, sec. 51.

(a) Sir Wm. Scott, 1 Dodson, 247.

diately commenced on our part * as soon as the act of Con- *55 gress was passed, without waiting to communicate to the English government any notice of our intentions. (x)

But though a solemn declaration, or 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 apprise 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, (b) 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.1

(b) B. 3, c. 4, sec. 64.

1 But during the late rebellion it was laid down that when the regular course of justice had been interrupted, so that the courts of the United States could not be kept open, a civil war existed, without the necessity of a formal declaration or of legislative sanction. Nelson, J., in his dissenting opinion, cited the above passage. Prize Cases, 2 Black, 635; s. c. The Amy Warwick, 2 Sprague, 123, and

(2) The tendency is to regard a declaration of war as desirable and necessary. See 28 Am. L. Rev. 754. In The Teutonia, L. R. 3 Adm. & Ecc. 394, 409 (affirmed L. R. 4 P. C. 171), Sir Robert Phillimore said: "I think that there can be no doubt that war may exist de facto so as to affect at least the subjects of the belligerent state, either without a declaration on either side, or before a declaration, or with a unilateral declaration only." With respect to third parties, notice of the war should be given, or be apparent from notoriety, in order to throw upon them the duties of neutrality; and until such notice

The Hiawatha, Blatchf. Pr. 1. See on the subject generally, Twiss, L. of N. War, § 35 et seq. As to the Crimean war, see Annual Register, 1854, 256 et seq., and State Papers, 531; Annual Register, 1859, 215 et seq. For the beginning of the war with Denmark, in 1864, see Ann. Reg. 1864, 218; for that of the war between Prussia and Austria, Ann. Reg. 1866, 219; between France and Prussia, Ann. Reg.

the conduct of neutrals is entitled to the most favorable construction. 1 Halleck's Int. Law (Baker's 3d ed., 1893), p. 542.

An Indian war depends simply upon the existence of hostilities, no formal declaration of war by Congress, or proclamation by the President, being necessary. Marks v. United States, 28 Ct. Cl. 147.

Belligerency may be recognized expressly, as by proclamation, or impliedly by acts of war, such as a blockade, or tacitly, by acquiescing in the exercise of belligerent rights. The Ambrose Light, 25 Fed. Rep. 408. War dates from action by Congress. Thayer's Const. Law Cases, 2352.

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 own government, and a war between the 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. (c) Very important consequences concerning the obligations of subjects are deducible from this principle.

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3. Protection to Enemy's Property. *When hostilities have commenced, the first objects that 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 Bynkershoek, 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 Bynkershoek lays down this, as well as other rules of war, with great harshness and severity, he mentions several instances, aris

(c) Grotius, b. 3, c. 4, sec. 9; c. 4, sec. 8; Burlamaqui, pt. 4, c. 4, sec. 20; Vattel, b. 3, c. 5, sec. 70; [Small's Adm. v. Lumpkins's Exec., 28 Gratt. 832.] [See Hall, Int. Law. pt. 1, c. 3, § 18, where the opinions of continental jurists, holding that only the states as such, and not the individuals of each, become enemies, are reviewed. — B.] (a) Grotius, b. 3, c. 9, sec. 4; c. 21, sec. 9; Bynk. Quæst. J. Pub. c. 2 and 7 ; Martens, b. 8, c. 2, sec. 5.

1870, 94. [The Rebellion did not suspend commercial intercourse, and hence did not dissolve a partnership. Such intercourse was not suspended until the proclamation of August 16, 1861. Matthews v. McStea, 91 U. S. 7. See, generally, Hall, Int. Law, pt. 3, c. 1, § 123; The

Teutonia, L. R. 4 P. C. 171, 178, 179. For the beginning of the war between Russia and Turkey, see Ann. Reg. 1877, 248. As to the time when the civil war ended, see Nelson v. Manning, 53 Ala. 549; Batesville Institute v. Kauffman, 18 Wall. 151. B.]

ing in the seventeenth, and one as early as the fifteenth 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. (b) Emerigon (c) 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 latter publicists is in conformity with that provision. (d) The sovereign who declares war, says Vattel, can neither detain those subjects of the enemy who are in 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 continue *there, the sovereign tacitly promised them protection and *57 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. (a) 1 Sir Michael Foster (6) mentions several in

(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, and between the United States and the Republic of Venezuela, by the treaty of friendship and commerce in May, 1836.

(c) [Traité des Ass. i. 566], 567.

(d) Vattell, b. 3, c. 4, sec. 63; Azuni, pt. 2, c. 4, art. 2, sec. 7; Le Droit Public de l'Europe, par Mably Œuvres, vi. 334; Burlamaqui, pt. 4, c. 7, sec. 6.

(a) Vattel, b. 3, c. 4, sec. 63. See the treaty of commerce between the United States and the Republic of Chili, May, 1832, art. 23, which affords that permanent protection.

(b) Discourse of High Treason, 185, 186.

1 See treaties of the United States with Guatemala, 10 U. S. St. at L. 873, art. 25; Costa Rica, ib. 916, art. 11; Peru, ib. 926, art. 32; Argentine Confederation, ib. 1005, art. 12.

government, at the beginning of the war with Russia, Russian merchant vessels in British ports were allowed six weeks to load their cargoes and depart. March 29, 1854. It was further ordered that any

By orders in council of the British Russian merchant vessel which, prior to

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