The latter first sent the chief of the feciales, called the paterpatratus, to demand satisfaction of the offending nation; and if, within the space of thirty-three days, no satisfactory answer was returned, the herald called the gods to witness the injustice, and came away, saying that the Romans would consider upon the measures to be adopted. The matter was then referred to the senate, and, when the war was resolved on, the herald was sent back to the frontier to make declaration in due form. Invasions, without such public notice, were looked upon as unlawful, and no nation was regarded as an enemy of the Roman people until war was thus publicly declared against it. By such scrupulous delicacy, says Vattel, in the conduct of her wars, Rome laid a most solid foundation for her subsequent greatness. During the middle ages, and even as late as 1635, a declaration of war to the enemy, previous to beginning hostilities, was generally made, and indeed was required by the laws of honour and chivalry.'

§ 3. But in modern times the practice of a formal declaration to the enemy has fallen into entire disuse, the belligerents limiting themselves to a public declaration within their own territories and to their own people. The latest example of a public declaration to the enemy was that of France against Spain, at Brussels, in 1735, by heralds at arms, according to the forms observed during the middle ages. For a long time, however, writers on public law were divided in opinion with respect to the propriety of the modern practice of commencing war without any formal declaration to the enemy. Grotius, Puffendorf, Valin, Emerigon and Vattel think that such declaration should be made, while Bynkershoek, Heineccius and more recent writers maintain that, although such declaration may very properly be made, yet it cannot be required as a matter of right. There is nothing in international jurisprudence, as now practised, to render such declaration obligatory, and the present usage entirely dispenses with it. All, however, agree that there should be some manifesto, declaration, or publication made within the territory of the State which declares the war, announcing the existence of hostilities; and such manifesto, or publication, usually sets forth the motives for commencing the war. Some such formal act,

1 Kent, Com. on Am. Law, vol. i. p. 53; Vattel, Droit des Gens, liv. iii. ch. iv. § 51.

proceeding from the competent authority, seems necessary in order to announce to the people at home, and to apprise neutral nations of, the war, for their instruction and direction in respect to their intercourse with the enemy. 'Without such a declaration,' says Wheaton, 'it might be difficult to distinguish, in a treaty of peace, those acts which are to be accounted lawful effects of war, for those which either nation may consider as naked wrongs, and for which they may, under certain circumstances, claim reparation.' Moreover neutral States have a right to know, by some formal and authoritative act, that hostilities exist in form as well as in fact, on account of the interests of their own subjects, whose duties and relations to the belligerents are essentially changed by the new condition of things. It is not material under what form such notice is given, whether by proclamation, or by a mere act of the legislative branch of the government. Thus, in the war of 1812, between the United States and Great Britain, hostilities immediately commenced as soon as Congress had passed the act, without waiting to communicate the fact either to England or to neutral States.1

1 Grotius, De Jur. Bel. ac Pac., lib. iii. cap. iii. § 5; Wheaton, Elem. Int. Law, pt. iv. ch. i. §8; Bynkershoek, Quæst. Jur. Pub., lib. iii. cap. ii. ; Vattel, Droit des Gens, liv. iii. ch. iv. §§ 51-56; Emerigon, Traité des Assurances, ch. xii. § 35; Heineccius, Elementa Juris Nat. et Gent., lib. ii. 198; the 'Nayade,' 4 Rob., 253; the 'Eliza Ann,' 1 Dod. R., 247.

A formal declaration of war cannot be said to be strictly necessary. Nevertheless, civilisation would seem to demand it. It was duly made by England to Russia before the commencement of the Crimean War, 1854. It was, also, made by France to Prussia, before the commencement of the Franco-Prussian War, 1870. Calvo (Droit Int., ii. p. 33) is even of opinion that the Declaration of Paris, 1856, has rendered it obligatory on the subscribing powers.

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 'Brillante' v. United States, 11 Am. Law Rep., N.S., 334.

Declaration of war preceded the war of 1866 between Austria and Italy, and that of 1876 by Servia against Turkey.

It is interesting to record the commencement of the hostilities in the last Franco-Prussian War. On July 19, 1870, at three o'clock in the. morning, a patrol of French cavalry galloped up to the Custom-house of Forsterhohe, on the Saarbruck frontier, and carried off the frontier guard Ehme, performing his duties as a collector of customs, and the guard Roscheds, also stationed at that Custom-house. After having seized the arms of these Custom-house officers, and the money chest, containing, however, only a few crowns, the French patrol retired precipitately, pursued by a picket of German Lancers, who had come in haste to the spot. Some shots exchanged in this meeting were without effect.

§ 4. Notwithstanding a very general accordance, in modern wars, with the doctrine of unilateral declaration, there are quite a number of instances where wars between the most civilised nations have been commenced and carried on without a formal declaration of any kind. But these instances have generally resulted from peculiar circumstances, which rendered, or seemed to render, a public declaration unnecessary or inconvenient; they are, therefore, exceptions to the general rule established by modern usage. Thus, the war of 1846, between the United States and Mexico, was commenced by a conflict of armed forces on the disputed territory, and without any declaration on either side. The congress of the United States immediately passed an act recognising the existence of the war. The war of 1792, between France and Great Britain, was preceded by no formal declaration; the British ambassador was withdrawn, and the French ambassador dismissed, whereupon the National Assembly of France passed a vote of war and the seizure of British property. Phillimore deems this proceeding to have been 'perfectly justifiable in point of form.' So, also, the war of 1778 between the same powers, was commenced without any formal declaration on either side, the treaty of alliance between France and the revolted English colonies of North America being deemed, in itself, sufficient to justify hostilities on the part of Great Britain. History affords other examples of the same kind. Even admitting the views of Hautefeuille, that such wars are violations of the law of nations, so far as concerns the failure to make a formal declaration, it will hardly be contended that all the belligerent acts of the parties, during the continuance of the war, are, of consequence, illegal, and violations of international jurisprudence. It is, therefore, necessary to fix a time when the war is to be regarded as regular or formal. This is no easy matter: different solutions of the question have been proposed, the most sensible of which is the rule that, in such cases, the legitimate consequences of war flow directly from the state of public hostilities, and that the effects which the voluntary law of nations attributes to solemn war date, with respect to belligerent rights, from the commencement of such hostilities, and, with respect to neutral duties, from an official announcement, or a positive knowledge, of the existence of the war.'

1 Riquelme, Derecho Pub. Int., lib. i. tit. i. cap. ix.; Hautefeuille,

§ 5. Declarations of war may be either absolute or conditional. Hostilities result at once from the former, and the two nations are regarded as belligerents from the date of the declaration. But the demand of the one power upon the other may be accompanied by a notification that hostilities will be commenced unless satisfaction upon some matter specified be obtained immediately, or within a certain limited time. In this case the war dates from the commencement of hostilities. Sometimes, however, it is very difficult, in such cases, to fix the exact point where belligerent rights begin, and when the duties of neutrals, and the obligations of subjects, incident to the new relations of the two States, have commenced. The rule given in the preceding paragraph applies also to cases of conditional declaration.

§ 6. If the enemy, says Vattel, on either declaration offers equitable conditions of peace, the war is to be suspended, for whenever justice is done all right of employing force is superseded. To these offers, however, are to be added good and sufficient securities, for we are under no obligations to suffer ourselves to be amused by empty proposals. Moreover, we have a right to demand security, not only for the principal objects for which hostilities were declared, but also for the expenses incurred in making preparations for the war. The nature of this security will depend upon the peculiar circumstances of the case, or the confidence we are willing to repose in the word of the enemy. If the war was declared for the recovery of territory unjustly withheld from us, its immediate surrender would satisfy the main object of the declaration.1

§ 7. Although Vattel strenuously insists upon the ancient rule, that the declaration of war must, in general, be communicated to the State against which it is made, he makes the case of a war strictly defensive an exception. He who is attacked, he says, and wages only a defensive war, need not make a formal declaration, as the state of war is sufficiently determined by the declaration or conduct of the enemy. Nevertheless, the nation which is attacked seldom omits to make such declaration, either from a sense of its own dignity, or for the information of its own subjects and of neuDes Nations Neutres, tit. iii. ch. i.; Phillimore, On Int. Law, vol. iii. § 51 et seq.; Moser, Versuch, etc., b. xviii. cap. ii. § 4; De Cussy, Droit Maritime, liv. i. tit. iii. § 4; the ‘Eliza Ann,' i Dod. R., 247.

1 Vattel, Droit des Gens, liv. iii. ch. iv. § 54.

tral States. It has already been shown that modern usage does not absolutely require a formal declaration in any case, ex debito justitiæ inter gentes, although some public act, recognising the existence of the war, may be required by public or municipal law, in order to determine the duties and relations of the subjects of the belligerents. Such recognition seems as necessary in a defensive as in an offensive war. Thus, when Sweden, in 1812, had declared war against Great Britain, and the British government had neither issued a counter-declaration nor caused any official declaration to be made to its own subjects, Sir William Scott said it might be a question of nicety to determine how far the Swedish proclamation would affect the rights of British subjects to carry on their accustomed intercourse with the ports of Sweden.''

§ 8. A war duly declared, or officially recognised, is not merely a contest between the governments of the hostile States in their political character or capacity; on the contrary, its first effect is to place every individual of the one State in legal hostility to every individual of which the other is composed, and these individuals retain the legal character of enemies, in whatever country they may be found. In the next place, all the property of the one State, and of each of its citizens, is deemed hostile with respect to the opposing belligerent. Very important consequences, as to the rights of persons and property, are deducible from these principles. We here allude only to the general doctrine of the effects of a declaration of war; the limitations and modifications of this doctrine, by usage and constitutional law, will be discussed in another place.2

§ 9. One of the immediate and important consequences of this principle, which has been fully confirmed by the usages of modern warfare, and by the decisions of the judicial tribunals of Europe and the United States, is, that a declaration, or recognition, of war, effects an absolute interruption and

1 Vattel, suprà; the 'Success,' 1 Dod. R., 133.

2 When one nation is at war with another nation, all the subjects or citizens of the one, are deemed to be in enmity to the subjects or citizens of the other; they are personally at war with each other, and have no capacity to contract.-(Supreme Ct.), White v. Burnley, 20 How, 235.

It was held, by the British Court of Admiralty, that the British Order in Council, of April 15, 1854, did not permit an enemy, during the Crimean war, to sell his ships in the ports of Great Britain.-The 'Odessa,' Spink's P. R., 208.