CHAP. IV. BOOK III. quaint them with the justificatory reasons which authorize it, the cause which obliges him to take up arms,—and to notify to them that such or such a nation is his enemy, that they may conduct themselves accordingly. We shall even see [319] that this is necessary in order to obviate all difficulty, when we come to treat of the right to seize certain things which neutral persons are carrying to the enemy, and of what is termed contraband, in time of war. This publication of the war may be called declaration, and that which is notified directly to the enemy, denunciation; and, indeed, the Latin term is denunciatio belli. 2 65. Decorum and moderation to be observed in the manifestoes. 2 66. What is a lawful war in due form. War is at present published and declared by manifestoes. These pieces never fail to contain the justificatory reasons, good or bad, on which the party grounds his right to take up arms. The least scrupulous sovereign would wish to be thought just, equitable, and a lover of peace: he is sensible that a contrary reputation might be detrimental to him. The manifesto implying a declaration of war, or the declaration itself, printed, published, and circulated throughout the whole state, contains also the sovereign's general orders to his subjects, relative to their conduct in the war.* In so civilized an age, it may be unnecessary to observe, that, in those pieces which are published on the subject of war, it is proper to abstain from every opprobrious expression indicative of hatred, animosity, and rage, and only calculated to excite similar sentiments in the bosom of the enemy. A prince ought to preserve the most dignified decorum, both in his words and in his writings. He ought to respect himself in the person of his equals: and, though it is his misfortune to be at variance with a nation, shall he inflame the quarrel by offensive expressions, and thus deprive himself even of the hopes of a sincere reconciliation? Homer's heroes call each other "dog" and "drunkard:" but this was perfectly in character, since, in their enmity, they knew no bounds. Frederic Barbarossa, and other emperors, and the popes their enemies, treated each other with as little delicacy. Let us congratulate our age on the superior gentleness of its manners, and not give the name of unmeaning politeness to those attentions which are productive of real and substantial effects. Those formalities, of which the necessity is deducible from the principles and the very nature of war, are the characteristics of a lawful war in due form (justum bellum.) Grotius says, that, according to the law of nations, two things are requisite to constitute a solemn or formal war-first, that it be It is remarked as a very singular circumstance, that Charles the Second, king of Great Britain, in his declaration of war against France, dated February 9, 1668, promised security to French subjects who should "demean themselves properly,"-and, moreover, his protection and favour to such of them as might choose to emigrate to his dominions. De Jure Belli et Pacis, lib. i. cap. iii. 4. CHAP. IV. on both sides, made by the sovereign authority, secondly, BOOK III. that it be accompanied by certain formalities. These formalities consist in the demand of a just satisfaction (rerum repetitio), and in the declaration of war, at least on the part of him who attacks;-for defensive war requires no declaration (§ 57), nor even, on urgent occasions, an express order from the sovereign. In effect, these two conditions are necessarily [320] required in every war which shall, according to the law of nations, be a legitimate one, that is to say, such a war as nations have a right to wage. The right of making war belongs only to the sovereign (§ 4); and it is only after satisfaction has been refused to him (§ 37), and even after he has made a declaration of war (§ 51), that he has a right to take up arms. (145) A war in due form is also called a regular war, because cer- What a retain rules, either prescribed by the law of nature, or adopted gular war, by custom, are observed in it. and to be noticed in be distin Legitimate and formal warfare must be carefully distin- courts of guished from those illegitimate and informal wars, or rather justice, &c. predatory expeditions, undertaken either without lawful au- (146.) thority or without apparent cause, as likewise without the 67. It is to usual formalities, and solely with a view to plunder. Grotius guished relates several instances of the latter.* Such were the enter- from inprises of the grandes compagnies which had assembled in formal and France during the wars with the English,-armies of banditti, who ranged about Europe, purely for spoil and plunder: such were the cruises of the buccaneers, 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 Barbary corsairs: though authorized by a sovereign, (145) Ante, the notes to the same sections.-C. (146) It has been laid down, that whenever the king's courts are open in a given country, it is time of peace in judgment of law; but, when by hostile measures such courts are shut up or interrupted, then it is said to be time of war. Earl Lancaster's case, Hale's Pleas Crown, Part I. c. 26, p. 344; Co. Litt. 249, b. cited, and other points as to what is war; Elphinstone v. Bedreechund, Knapp's Rep. 316. But at present, when in courts of justice, whether of Common Law, Equity, Admiralty, or Prize Court, it becomes necessary to ascertain what is, or not, evidence of a war, or a peace, or neutrality, the same is now usually determined by distinct acts of the state. Upon this question, the following cases are material:-Sir Wm. Grant (in case of Pelham Burke, 1 Edward's Rep. Appendix D; 3 Camp. 62; Blackburne v. Thompson, 15 East, Lib. iii. cap. iv. unlawful war. BOOK III. they are undertaken without any apparent cause, and from no CHAP. IV. other motive than the lust of plunder. These two species of war, I say, the lawful and the illegitimate,-are to be carefully distinguished, as the effects and the rights arising from each are very different. 268. this distinc tion. In order fully to conceive the grounds of this distinction, Grounds of it is necessary to recollect the nature and object of lawful war. It is only as the last remedy against obstinate injustice that the law of nature allows of war. Hence arise the rights which it gives, as we shall explain in the sequel: hence, likewise, the rules to be observed in it. Since it is equally possible that either of the parties may have right on his side,and since, in consequence of the independence of nations, that point is not to be decided by others (§ 40),-the condition of the two enemies is the same, while the war lasts. Thus, when a nation, or a sovereign, has declared war against another sovereign on account of a difference arisen between them, their war is what among nations is called a lawful and formal war; and its effects are, by the voluntary law of nations, the same on both sides, independently of the justice of the cause, as we shall more fully show in the sequel.* Nothing of this kind is the case in an informal and illegitimate war, which is more properly called depredation. Undertaken without any right, without even an apparent cause, it can be productive of no lawful effect, nor give any right to the author of it. A nation attacked by such sort of enemies is not under any obligation to observe towards them the rules prescribed in formal war[321] fare. She may treat them as robbers. (1) The inhabitants of Geneva, after defeating the famous attempt to take their city by escaladet, caused all the prisoners whom they took from the Savoyards on that occasion to be hanged up as robbers, who had come to attack them without cause and without a declaration of war. Nor were the Genevese censured for this proceeding, which would have been detested in a formal war. See chap. xii, of this book. {(1) Pirates may be lawfully captured by the public or private armed ships of any nation, in peace or war; for they 424 are hostes humani generis. The Marianna Flora, 11 Wheat. Rep. 1.} In the year 1602. BOOK III. CHAP. V. CHAP. V. OF THE ENEMY, AND OF THINGS BELONGING TO THE ENEMY. is an ene THE enemy is he with whom a nation is at open war. The 3 69. Who Latins had a particular term (Hostis) to denote a public enemy, and distinguished him from a private enemy (Inimicus). Our my. (147) language affords but one word for these two classes of persons, who ought, nevertheless, to be carefully distinguished. (147) As to the definition of an alien enemy, and of what is less than a general enemy, and merely an hostile character, or hostile residence, or hostile trade, and of the modern decisions on the diversities; see Boedes Lust, 5 Rob. Rep. 233; 1 Chitty's Commercial Law, 394 to 412, Id. Index, tit. Hostile Character, and Chitty's L. Nat. 30 to 64. In some cases, the generous and beneficial conduct of an enemy will obliterate his hostile character, and preclude his property from becoming subject to seizure, as was beautifully illustrated by Sir W. Scott's decision in Jonge J. Baumann, where an English frigate, with her officers and crew, having been saved from shipwreck by a foreign {neutral} vessel and crew, the former ungratefully carried the latter into port as prize; asserting she had French property on board;} but a restoration was decreed, on the ground that such a service had blotted out and obliterated the character of an enemy, {if it had ever existed, which was not the fact.} 1 Rob. Rep. 245; and see 2 178, post, pp. 374-5. Of the illegality of commerce between subjects of belligerent states.-Vattel is very succinct upon this, in modern times, the most important consequence of war. In general it is illegal for the private subjects of belligerents to have any commercial transactions or dealings between each other, in expectation of or pending the war; for otherwise assistance might be rendered to the enemy, enabling them to protract the war, and, under colour of commerce, secret communications might be made injurious to the states of each country; and therefore there is no such thing as a war for arms, and a peace for commerce. The rule and the principle upon which it is founded, are fully commented upon in the case of The Hoop, 1 Rob. Rep. 196; Potts v. Bell, 8 Term Rep. 548; Mennett v. Bonham, 15 East, 489; Willan v. Patteson, 7 Taunt. 439; Grotius, B. 3, c. 4, s. 8; Binkershoek, B. 1, c. 3; Chitty's L. Nat. 1 to 27. The exceptions to that rule are sometimes by express treaty; (see 2 Ward's Law of Nat. 358;) and in Great Britain have been permitted by temporary acts, or by orders in council, authorizing the privy council to grant licenses. (See Phillimore on Licenses, 5.) The case of prisoners at war contracting for necessaries, constitutes an exception. Antoine v. Morshead, 6 Taunt. 237447; 1 Marsh. Rep. 558; Danby v. Morshead, 6 Taunt. 332; Vattel, post, ¿ 264, p. 414. Questions sometimes arise, whether a commercial transaction between parties in different countries, afterwards at war with each other, as for instance, Great Britain and America, pending war, or on the eve of war, between these countries, was pactum illicitum. If it be pending war, or in contemplation of it, and against its spirit, and not expressly licensed by the Government, then it is illegal. See the rule in the case of McGavon v. Stewart, in the House of Lords, (14 July, 1830,) 4 Wils. & Shaw, 193-4. An alien carrying on trade in an enemy's country, though resident there also in the character of consul of a neutral state, has been considered an alien enemy, and as such disabled to sue, and liable to confiscation. Albrebtcht v. Sussmann, 2 Ves. & Beames, 323. But these rules prohibiting commerce between the subjects of belligerent states, do not affect neutrals; (excepting, indeed, the liability to visitation and search;) and, therefore, actions may be sustained in England by a neutral on a promissory note given to him by a British subject in an enemy's country, for goods sold by the neutral to the latter there. Cowp. 363; Hourret v. Morris, 3 Camp. 303. And it has even been held, that an Englishman CHAP. V. BOOK III. A private enemy is one who seeks to hurt us, and takes pleasure in the evil that befals us. A public enemy forms claims against us, or rejects ours, and maintains his real or pretended rights by force of arms. The former is never innocent; he fosters rancour and hatred in his heart. It is possible that the public enemy may be free from such odious sentiments, that he does not wish us ill, and only seeks to maintain his rights. This observation is necessary in order to regulate the dispositions of our heart towards a public enemy. 270. All of the two states at When the sovereign or ruler of the state declares war the subjects against another sovereign, it is understood that the whole nation declares war against another nation; for the sovereign war are ene- represents the nation, and acts in the name of the whole society (Book I. §§ 40, 41;) and it is only in a body, and in her national character, that one nation has to do with another. Hence, these two nations are enemies, and all the subjects of the one are enemies to all the subjects of the other. In this particular, custom and principle are in accord. mies, 271. and The Enemies continue such wherever they happen to be. continue to place of abode is of no consequence here. It is the political be enemies ties which determine the character. in all places. Whilst a man continues a citizen of his own country, he is the enemy of all those with whom his nation is at war. But we must not hence conclude that these enemies may treat each other as such, wherever they happen to meet. Every one being master in his respective country, a neutral prince will not allow them to use any violence in his territories. 3 72. Whe- Since women and children are subjects of the state, and ther women members of the nation, they are to be ranked in the class of and children enemies. But it does not thence follow that we are justifiable in treating them like men who bear arms, or are capable of bearing them. It will appear in the sequel, that we have not [322] the same rights against all classes of enemies. are to be ac counted enemies. 73. Things the enemy When once we have precisely determined who our enemies belonging to are, it is easy to know what are the things belonging to the enemy (res hostiles). We have shown that not only the sovereign with whom we are at war is an enemy, but also his whole nation, even the very women and children. Every thing, therefore, which belongs to that nation,-to the state, to the sovereign, to the subjects, of whatever age or sex,-every thing of that kind, I say, falls under the description of things belonging to the enemy. domiciled in a foreign state in amity commerce in a hostile country, is to be considered as impressed with a hostile character, with reference at least to so much of his commerce as may be connected with that establishment; and this, whether he maintains that establishment as a partner, or as a sole trade. The Citto, 3 Rob. 38; The Portland, Id. 41 to 44.-C. |