Privateers.

liate for the injuries sustained by American commerce, by general letters of marque and reprisal, "because, on a repeal of their edicts by the belligerents, a revocation of the letters of marque would restore peace without the delay, difficulties, and ceremonies of a treaty." (1) But this would have been at variance with the customary law of Europe, which is stated by Vattel in the words of De Witt, "I do not see any difference between general reprisals and open war." (2)

Ships commissioned by letters of marque, and exercising general reprisals, are commonly termed Privateers. They constitute a species of force which has been resorted to in almost all wars; and a great number of treaties regulate the granting such commissions; especially stipulating that persons who take such letters of marque shall find large security to their government; so as to form a fund that may be applied for purposes of indemnification, in case neutrals should be injured by the lawless aggression of such privateers. The most extraordinary encouragement ever given to this species of force, was by Louis XIV., who, by an ordinance in 1688, lent his ships of war to private individuals, in a state of complete preparation for sea, with all necessary munitions, rigging, and stores. The individuals who used these vessels as privateers, were not responsible if the ship were lost, and were to have the whole profits of the prizes made, only paying for the wages and provisions of the men, and replacing the stores consumed. (3) Ships of war had been lent by Louis XIV. as privateers, under less advantageous conditions, in 1674. This was a favourite species of force at that period; and Voltaire says that it was supposed, though not proved, that part of the

(1) Jefferson's Correspondence, vol. IV. p. 119.

(2) Vattel, Droit des Gens,

liv. II. ch. XVIII. § 345, note.

(3) Valin, tom. II. pp. 226, 227.

great wealth of Mazarin was gained by his sharing in the profits of privateers. (1) When the United States, at the conclusion of the American war, sent ministers to Europe to negotiate treaties, they endeavoured, at the suggestion of Franklin, (2) to obtain the general insertion of an article forbidding the use of privateers. This was done in their treaty with Prussia in 1785, art. XXIII; (3) but it was attended with no general results, and this article was not renewed in their Prussian treaty of 1799. The miseries of war might be lessened if the use of privateers were discontinued: but, as a chief end of maritime warfare is the annoyance of the enemy by the destruction of his commerce, privateers certainly exercise a direct influence on the issue of a war, and are often a very useful species of force. They increase the naval force of a state, by causing vessels to be equipped, from private cupidity, which a minister might not be able to obtain by general taxation without much difficulty; and though the custom of privateering may have many objections, yet one state will not be able to forego the use of this species of force, if it should be resorted to by its hostile antagonist.

CHAPTER III.

Declarations of war usual in ancient times.

DECLARATION OF WAR.

In ancient times war was solemnly declared, either by certain fixed ceremonies, or by the announcement of heralds; and a war commenced without such declaration was regarded as informal, and irregular, and contrary to the usage of nations. Grotius says, that a declaration of war is not necessary by the law of nature, "naturali jure nulla requiritur declaratio," but that it was required by the law of nations, "jure gentium," by which term, be it remembered, he means the usage of nations. (1) And in this he was right, as, until the age in which he lived, wars were almost invariably preceded by solemn declarations. The Romans, according to Albericus Gentilis, did not grant a triumph for any war which had been commenced without a formal declaration; (2) but the Greeks do not seem to have been at all regular in their observance of this custom. (3) During the times of chivalry declarations of war were usually given with great formality, the habits of knighthood being carried into the customs of general warfare, and it being held mean to fall upon an adversary when unprepared to defend himself. (4) With the decline of chivalry this cus

(1) De Jure, lib. III. c. III.
§. 6.

(2) De Jure Belli, lib. II. § 1.
(3) Bynkershoek, Quæst. Jur.

Pub. lib. I. c. II.

(4) Ward's Introduction, Vol. II., 206-230.

tom gradually fell into disuse. Gustavus Adolphus invaded Germany without any declaration of war; (1) but this appears to have been an exception to the usages of the age and Clarendon speaks of declarations of war as being customary in his times, and blames the war in which the Duke of Buckingham went to France, as entered into "without so much as the formality of a declaration from the king, containing the ground and provocation and end of it, according to custom and obligation in the like cases." (2) Formal denunciations of war by heralds were discontinued about the time of Grotius; the last instance having been, according to Voltaire, (3) when Louis XIII. sent a herald to Brussels to declare war against Spain, in 1635.

Since that period formal declarations of war have Manifestoes fallen into disuse; but manifestoes are generally pub- now generally employed. lished by the belligerent governments in their own countries, and communicated to foreign states, proclaiming that war has commenced, and stating the reasons for hostilities. In the beginning of the last century, according to Bynkershoek, declarations of war were not considered necessary; (4) but Vattel says, that declarations. of war ought always to be given by manifestoes, humanity requiring that notice should be given of so sad an alternative as war, and it being, for many reasons, desirable to fix the date when the rights of war have commenced.(5) De Martens and Klüber both state that, by the customary law of nations, declarations of war are no longer considered necessary, but that it is usual to pub

(1) Zouch, de Judicio inter gentes, P. II. § x. 1.

(2) Hist. Reb. Vol. I. 40, ed. 1707.

(3) Sièc. de Louis XIV. tom. I.

ch. II.

(4) Quæst. Jur. Pub. lib. I.

C. II.

(5) Droit des Gens, liv. III. ch. IV. § 51, 55, 56, 64.

Many wars without such notice.

Recal of ambassadors.

lish manifestoes which are communicated to foreign courts. (1)

There are numerous instances in modern times in which war has been entered into without notice of any description. In 1740 Prussia commenced war with Austria without any declaration; (2) so did France with Sardinia in 1743; (3) so did the empire with Prussia in 1757; (4) so did France and Great Britain in 1756; (5) Russia invaded Finland, in 1808, without any declaration of war; (6) and, in 1812, the Americans commenced war immediately that the act of Congress had passed, without waiting to communicate their intentions to Great Britain. (7) Thus nearly all the chief states of Europe and America have afforded examples of this practice; but still it may be considered that these are exceptions, and that, according to the usage of nations, war should be proclaimed by manifestoes.

The recal of ambassadors is usually considered as tantamount to a declaration of war. In our treaty with Portugal, in 1812, it is declared, art. XXI., that a rupture of pacific relations is not to be regarded as taking place till the recal, or dismissal, of the respective ambassadors. (8) This article has been adopted by Brazil, in her treaty with France, in 1826; (9) with Prussia, in 1827; (10) with Great Britain, in the same