nary to the admission of the new state into the family of nations.' The Right to Declare War, or to Initiate Hostilities, in Whom Vested. The right of declaring war is an essential attribute of sovereignty. It is the act of the supreme governmental authority of a state, and is limited in its exercise, if at all, only by the constitution or fundamental law of the state by whom, or in whose behalf, it is exercised. In former times the power to declare war, or otherwise involve a state in hos 1 France not only recognized the belligerency and independence of the United States, but concluded a treaty of alliance with that power, in consequence of which the military and naval forces of France were employed in co-operation with those of the colonies in the prosecution of the War of the Revolution. I Halleck, p. 72; Boyd's Wheaton, §§ 21a, 27d-27f; Woolsey, 40; Hall, pp. 90-94; I Dig. Int. Law, § 70; Creasy, pp. 670677. Prior to the outbreak of war between the United States and Spain, the belligerency and also the independence of the people of the Island of Cuba were recognized by the Congress of the United States in the following Joint Resolution: "Whereas, The abhorrent conditions which have existed for more than three years in the Island of Cuba, so near our own borders, have shocked the moral sense of the people of the United States, have been a disgrace to Christian civilization, culminating, as they have, in the destruction of a United States battle - ship, with two hundred and sixty-six of its officers and crew, while on a friendly visit in the harbor of Havana, and cannot longer be endured, as has been set forth by the President of the United States in his message to Congress of April eleventh, eighteen hundred and ninety-eight, upon which the action of Congress was invited: Therefore, "Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, First, That the people of the Island of Cuba are, and of right ought to be, free and independent. Second. That it is the duty of the United States to demand, and the Government of the United States does hereby demand, that the Government of Spain at once relinquish its authority and government in the Island of Cuba and withdraw its land and naval forces from Cuba and Cuban waters. "Third. That the President of the United States be, and he hereby is, directed and empowered to use the entire land and naval forces of the United States, and to call into the actual service of the United States the militia of the several states, to such extent as may be necessary to carry these resolutions into effect. "Fourth. That the United States hereby disclaims any disposition or intention to exercise sovereignty, jurisdiction, or control over said island except for the pacification thereof, and asserts its determination, when that is accomplished, to leave the government and control of the island to its people."-Joint Res. No. 21, April 20, 1898; 30 Stat. at Large, p. 738. tilities, was vested in the sovereign; the present tendency is to restrict his power in this regard, usually by requiring such declaration to be made, or sanctioned, by the supreme legislative authority; this is especially the case in states in which representative institutions exist. In the United States the power to declare war is vested, by the Constitution, in the Congress; but as it may exist without being declared as in case of invasion by a foreign power, or when insurrection or rebellion exists-it may be met and repelled by the President, as the constitutional commander-in-chief.' The power to declare war, or to recognize its existence, was formerly delegated to colonial governments, and even to commercial companies; such delegation of authority, however, is no longer recognized, and the power to initiate hostilities is now held to be exclusively lodged in the central government of the state. This does not prevent distant dependencies from recognizing the fact of war, if declared by another power; and they may resist invasion, or even carry the war into the territory of the enemy.' Formal Declaration of War. In former times war was declared with great formalities. This is no longer the case, the formal declaration having ceased when the necessity for its existence had passed away. When the relations of two states become strained the fact is at once known throughout the ' Constitution of the United States, article i. § 8, par. II. Congress may authorize general hostilities, in which case the general laws of war apply to our situation, or partial hostilities, in which case the laws of war, so far as they actually apply to our situation, must be noticed.-Talbot vs. Seeman, I Cranch, I (28). The Prize Cases, 2 Black, 635, 668. A state of actual war may exist without any formal declaration of it by either party; and this is true of both a civil and a foreign war.-Prize Cases, 2 Black, 635. The United States may be engaged in war, and have all the rights of a belligerent, without any The declaration by Congress. Boyd's Wheaton, §§ 294-297; I Halleck, p. 474; II Twiss, § 29; III Phillimore, pp. 77, 78, 153; II Ortolan, p. 11; Woolsey, § 120; Risley, pp. 77-82; Creasy, pp. 405, 406; II Ferguson, § 173. For cases of hostilities without declaration of war, see vol. xvii. Revue de Droit International, pp. 19-49. civilized world, and the subjects of the unfriendly powers have sufficient time to arrange their business affairs and to accommodate their legal relations to the changed conditions. When all attempts at peaceable adjustment have failed, diplomatic intercourse ceases, ministers are withdrawn, and the military and naval forces of the belligerents are mobilized and placed upon a war footing. So far as the opposing nations are concerned, no further declaration is now regarded as necessary.1 Official Notification of an Intended Resort to War. Although the practice of making formal declarations no longer obtains, a state which assumes a belligerent attitude towards another is obliged to give public notice of its intention in each of the following cases: 1st. To its own subjects; 2d. To neutrals. This notice is frequently given by proclamations which contain a statement of the cause of the war and of the purposes or motives for which it is undertaken. They also contain the date after which a state of hostility will legally exist. This is a matter of great importance, in that it enables neutral powers to give effect to their neutrality laws, to issue proclamations of neutrality, and to fix the date upon which their neutral obligations become binding. No declaration, or notice, is required from the state which acts on the defensive." III Phillimore, pp. 85-105; I Halleck, pp. 476, 477; II Twiss, pp. 64-68; Levi, p. 281; Boyd's Wheaton, §§ 297, 297a; Hall, pp. 374-382; II Ortolan, pp. 11-24; II Ferguson, pp. 262-267; Walker, Manual, p. 104; Lawrence, Int. Law, § 161. For the text of the Declaration of War against Spain, adopted by the Congress of the United States on April 25, 1898 (30 Stats. at Large, p. 364). For examples of hostilities without declaration of war, see vol. xvii. Revue de Droit International, pp. 19-49. With a view to safeguard to some extent the interests of neutrals, and to charge belligerents with a definite duty of notification, the Second Peace Conference at The Hague adopted a conventional rule providing that hostilities should not begin without previous and explicit warning, in the form of a declaration containing a statement of the reason justifying a resort to force, or of an ultimatum accompanied by a conditional declaration of war. For rest of this agreement, see Appendix F, Convention No. 3. 2 Vattel, liv. iii. chap. iv.; II Ferguson, pp. 262-267; Hall, pp. 380382; II Ortolan, pp. 11-24; IĮ Effects of a State of War. The direct effects of a state of war are: Ist. To place both the belligerent states and their subjects in a condition of non-intercourse with each other. 2d. Each citizen of one state becomes the legal enemy of every citizen of the other.' This state is legal, not actual, for no subject of either state can take the life of an enemy, or make captures on land or sea, or do any hostile act, without the express authority of his government. Commercial intercourse between subjects of the belligerent states becomes illegal. Contracts and other legal obligations are suspended during the continuance of hostilities, and a similar rule is ap Twiss, pp. 64-78; Boyd's Wheaton, §§ 297, 297a; I Halleck, pp. 476479; Levi, p. 281; Walker, Manual, pp. 104, 105; III Phillimore, pp. 105-113. For manifestoes of Chili and Peru at the outbreak of the war of 1878, see Foreign Relations of the United States, 1879, pp. 168, 867, 874; for the case of Russia in 1877, see Foreign Relations of the United States, 1877, p. 470. In a state of war, the nations who are engaged in it, and all their citizens or subjects, are enemies to each other.-Jecker vs. Montgomery, 18 Howard, 110. When international wars exist, all commerce between the countries of the belligerent, unless permitted by the sovereign, is contrary to public policy, and all contracts growing out of such commerce are illegal.-Coppel vs. Hall, 7 Wallace, 542; United States vs. Grossmeyer, 9 Wallace, 72; Planters' Bank vs. St. John, I Woods, 588; The Schooner Rapid, 1 Gallison, 295; the Hoop, 1 Rob. Adm. Rep. 196; Bynkershoek, Quest. Pub. Jur. lib. i. chap. 3; Cramer vs. United States, 7 Court of Claims, 302; Matthew vs. McStea, Otto, 7; III Phillimore, pp. 127-144; I Halleck, pp. 480484: Boyd's Wheaton, §§ 298-304a; Levi, pp. 281-285; Walker, Man All ual, pp. 106-111; Hall, pp. 387-393; Manning, pp. 166-177; Lawrence, Int. Law, §§ 162-165. War puts every individual of the respective governments, as well as the governments themselves, in a state of hostility with each other. treaties, contracts, and rights of property are suspended. The subjects are in all respects considered as enemies. They may seize the persons and property of each other. They have no persona standi in judicio, no power to sue in the public courts of the enemy nation. It becomes in the highest degree criminal to comfort or aid the enemy. The Schooner Rapid and cargo, I Gallison, 303. It may be averred as a part of the law of nations-forming a part, too, of the municipal jurisprudence of every country-that in a state of war between two nations, declared by the authority in whom the municipal constitution vests the power of making war, the two nations and all their citizens or subjects are enemies to each other. The consequence of this state of hostility is, that all intercourse and communication between them is unlawful.Jecker vs. Montgomery, 18 Howard, 110, 112. plied to partnerships and other business arrangements, Shares in the public stocks of either state, which are held in the territory of the other, are not confiscated or forfeited. Interest ceases to be paid at the outbreak of hostilities, but is resumed at the establishment of peace, the interest accrued during the war becoming payable at its close.' Citizens of one belligerent power in the territory of the other at the declaration of war may be required to depart, or may be permitted to remain, at the discretion of the state in whose territory they are resident.' The latter course has been pursued in most recent wars, and is the one most in accordance with the dictates of humanity. This question has frequently been made the subject of treaty stipulation. It is now generally recognized, however, that such persons are not to be made prisoners of war, and, if ordered to depart, they are to be given a reasonable time for removal with their property and effects. Subjects of the enemy who are permitted to remain in a belligerent state may be subjected to such special police regulation and supervision as may be deemed necessary by the government for its security. For reasonable cause they may be required to depart, or may be forcibly expelled. If they give aid or information to the enemy, or to their own government, they become subject to the laws of war, and may be treated, according to the nature of their offence, as prisoners of war, or as traitors or spies, and may be punished accordingly. The Property of Enemy's Subjects. The property of enemy's subjects found within the territory of a state at the out 'Manning, pp. 175, 176; Vattel, liv. iii. chap. v. § 77; Brown vs. U. S. 8 Cranch, 140; III Phillimore, §§ 87-89; IV Calvo, §§ 1916–1924; II Twiss, § 58; Dana's Wheaton, $308, note 157. 2 Boyd's Wheaton, § 304a, note. For a discussion of the right of the sovereign power of a country to require the services of all its citizens in time of war, see The Joseph, I Gallison, p. 545. The duty of a citizen, when war breaks out, if it be a foreign war, and he is abroad, is to return without delay; and if it be a civil war, and he is a resident in the rebellious section, he should leave it as soon as practicable.The William Bagaley, 5 Wallace, 377; IV Calvo, §§ 1912-1914; Hall, § 126; I Halleck, pp. 483-487; Manning, pp. 170-175. |