CHAPTER V

TRANSITION FROM NEUTRALITY TO BELLIGERENCY

The conduct of the Governments of Spain and the United States in the critical period of transition from peace to open hostility offers the first opportunity to test the application of the rules of warfare by two powers that have been well outside the sphere of modern wars. To be sure the United States passed through a great civil war from 1861 to 1865 and Spain one of lesser moment in the second Carlist Insurrection of 1873 to 1876, but both of these were in a different category; both exemplified the conduct of governments in civil wars.

The phase of the subject that first presents itself concerns the declaration of war. The Government of Spain had declared that the signing of the resolution of Congress authorizing intervention would be equivalent to a declaration of war and would be so regarded. General Woodford was given his passports immediately on the information reaching Spain that President McKinley had duly affixed his signature. The Government of the United States at first took the same view, and by a blockade proclamation of April 22, by the capture of Spanish merchant vessels on the same day, and by other belligerent acts conducted itself in every way as though the announcements already made were adequate to warrant opening hostilities. However, on April 25, four days later, President McKinley sent a special message to Congress recommending a

formal Congressional declaration of war, "to the end that the definition of the international status of the United States as a belligerent power may be known and the assertion of all its rights and the maintenance of all its duties in the conduct of a public war may be assured." The Senate and the House of Representatives responded the same day with a joint resolution that war be, and the same is hereby, declared to exist, and that war has existed since the twenty-first day of April, A. D. 1898, including said day, between the United States of America and the Kingdom of Spain."2

3

The most significant feature is the retroactive portion. Of just what international value a retroactive declaration can ever be it is difficult to conceive. The blockade proclamation of April 22 formally notified the powers of the existence of war, and would be taken as sufficient evidence to them that a state of war existed. The act was equally a matter of slight moment in domestic affairs from either a political or a constitutional standpoint. The President was authorized on April 20 to employ the army and navy in behalf of Cuban independence. The declaration of war merely repeated the same authorization, indeed in identical words.4

International practice and writers differ upon the 1 Richardson, Vol. X, p. 155.

2 Ibid., p. 201.

Cf. the view taken by writers on international law and the opinion of the Supreme Court of the United States, both to the effect that Lincoln's blockade proclamation was official and conclusive evidence that a state of war existed. 2 Black Sup. Ct. Rep. 665; Woolsey, International Law, p. 293. See Richardson, Vol. X, pp. 155, 201.

5

necessity of a declaration of war. Many French writers support the view of its necessity, while other European and most American and English writers hold the contrary view. Hautefeuille, Heffter and Calvo are the leading advocates of the old view of an obligatory declaration of war. Le Fur holds the same opinion and asserts that the great majority of writers agree with him. He gives two reasons for his position: to avoid all possibility of surprise, and to give formal announcement to neutrals of the state of belligerency and the substitution of the laws of war for the principles, so different, which prevail in time of peace.® However, such European writers as Klüber, Twiss and Phillimore think that no obligation rests upon states to make a formal declaration of war to enemies." Holtzendorff is of the same opinion, but a belligerent ought, he says, to give notice of some sort if he can do so consistently with his political interests and his military aims.8 This seems to be the view of Rivier, who would require some form of public announcement, ultimatum, manifesto or circular note or dispatch or other official publication, but not necessarily a formal declaration." De Martens, the Russian pub"See Hautefeuille, Vol. I, p. 102, 3d edition, Paris, 1868; Heffter, sec. 120; Calvo, Vol. II, p. 33.

Le Fur, La guerre hispano-américaine, p. 49. Raspiller, “Du passage de l'état de paix à l'état de guerre," Nancy, 1904, pp. 34-67, argues for a formal declaration except (1) in a war of defence, (2) against pirates, (3) in a civil war, (4) in war with a non-organized state, and (5) in cases where belligerent measures are confined to means of constraint.

7

Klüber, par. 238-39, Paris, 1874; Twiss, Vol. II, p. 65, Oxford, 1863; Phillimore, Vol. II, ch. 5.

8

Holtzendorff, Handbuch, 1899, Vol. IV, pp. 334–38. "Rivier, Vol. II, pp. 221–22.

11

licist, one of the most noted of the continental writers, considers that neither proclamation nor any form of diplomatic notice is obligatory, subject to the qualification that the relations of the parties are such that hostilities would constitute no surprise.10 Hall,11 the foremost English authority, says: "The doctrine of an obligation to declare war was never so consistently acted upon as to render obedience to it at any time obligatory. Since the middle of last century it has had no sensible influence upon practice." But, " partly for the convenience of the subjects of the state, and partly as a matter of duty towards neutrals a manifesto or an equivalent notice ought always to be issued, when possible, before the commencement of hostilities." Lawrence12 regards the element of surprise as of slight importance in the state of modern diplomacy, and the first act of hostility is sufficiently definite for dating the legal effects of war. Oppenheim, Woolsey, Wheaton and Walker are in complete accord with the latter view.13

From the above review it would appear that the majority of writers outside of France take the view that a preliminary declaration of war is unnecessary. Practice has also varied greatly. The Franco-Prussian war of 1870 and the Russo-Turkish war of 1877 both began with formal declarations, though in the latter case Russia invaded Turkey on the day that war was declared. The Chino-Japanese war, 1894 to 1895, 10 De Martens, Traité de droit international, Vol. III, p. 205. 11 International Law, 398-99.

13

13

Principles of International Law, pp. 299, 301.

'Oppenheim, International Law, Vol. II, pp. 103-6; Woolsey, International Law, pp. 189-90; Wheaton, International Law, p. 378; Walker, The Science of International Law, p. 242.

began without a declaration of war, and in the most recent war between Russia and Japan hostilities began with no declaration or manifesto of any sort.14

The United States in its foreign wars has generally preceded active belligerent operations by a manifesto or declaration of war by Congress, following a communication from the President. Hostilities were begun against Tripoli in 1802 upon the passage of an act of Congress "for the protection of commerce and seamen of the United States against the Tripolitan cruisers," without a more formal declaration. Just before the outbreak of the War of 1812 President Madison wrote in a special message to Congress, after reciting the grievances suffered at the hand of Great Britain: "We behold, in fine, on the side of Great Britain, a state of war against the United States; and on the side of the United States, a state of peace toward Great Britain." The message ended without any specific recommendation as to the course of action to follow, but Congress passed a bill declaring war, and the act received the President's signature. After a brief delay England responded by a declaration of war. However, in the mean time hostilities had begun. In the case of the Mexican war President Polk declared

14

1 Japan did not wait for the Russian response to her demands, but ordered the Russian minister to leave Tokio and instructed her own minister to ask for his passports. Under the circumstances the rupture in diplomatic relations was an adequate warning to the enemy and to neutrals. Two days after the beginning of hostilities the Japanese Emperor issued a formal manifesto to his own subjects without the retroactive clause so conspicuous in the American declaration, leaving the courts to determine the moment when hostilities in reality began. See for full discussion Hershey, International Law and Diplomacy of the Russo-Japanese war, pp. 62 ff.