Recall of Resident Envoys. § 34. It is usual for a Nation which contemplates the necessity of making war upon another Nation to apprize the other Nation of its sense of an injury having been inflicted upon it or of a right having been denied to it through the medium of its Resident Envoy; and if no satisfaction should be offered, to recall its Resident Mission. This step, however, cessation of friendly constitute a state of although it may imply the 32 Thus France and Great ensue. 33 Smollett's History of England, Vol. III. p. 27. In such a case as this, a right of hostilities, as between the two Nations, accrued to England at once upon the original breach of a treaty on the part of Spain; but the exercise of that right was suspended. The character of the acts of reprisal continued to be ambiguous, until war was declared. After war had been once declared, it reflected back upon the original breach of a treaty an undoubted character of hostility, and the property seized by way of reprisal became subject to condemnation, as the property of enemies ab initio 35. Formal De § 35. It may be taken to be the established Disuse of practice of European Nations, since the peace of clarations Paris (anno 1763), to dispense with any formal of War. Declaration of War between the parties, and to attach all the legitimate consequences of war to a state of hostilities, which has been duly recognised and explicitly announced by a domestic Manifesto or State paper. The last occasion on which England had recourse to a formal Declaration of War was on 2 January 1762, when she declared war against Spain, and by that Declaration authorised and required all the King's subjects to do and execute acts of hostility against the King of Spain, his vassals and subjects, whilst she also advertised all 34 From a letter addressed by Lord Chancellor Thurlow to the King's Advocate General, on 12 December 1778, a MS. copy of which is in the author's possession, it appears that there had been six declarations of war on the part of the King of England since the Revolution of 1688; namely, that of 7 May 1689, against France; 4 May 1702, against France and Spain; 16 Dec. 1718, against Spain; 19 October 1739, against Spain; PART II. 17 May 1756, against France; 35 Upon this principle Eng- F not other persons, of what Nation soever, not to transport or carry any soldiers, arms, powder, ammunition, or other contraband goods, to any of the territories or dependencies of the King of Spain. On the occasion of the next following war between England and France, in 1778, the first public act of the British Government was to recall its ambassador from Paris, and to lay an embargo upon all French vessels in British ports, immediately upon receiving a declaration 36 in writing from the French ambassador in London, that the French King had entered into a treaty of friendship and commerce with the United States of North America, " as a body of States, which had been in the full possession of independence since 4 July 1776," and that he was prepared to maintain effectively his treaty rights and the honour of his flag. France thereupon recalled her ambassador from the Court of St. James, and the French Mediterranean fleet having sailed to North America, a series of engagements took place between French and English vessels, although no Declaration of War had been issued on either side. Meanwhile the British Channel fleet, under Admiral Keppel, came into collision with some French frigates, and the two Nations drifted into open war. The occasion of this war was somewhat exceptional, being the first instance of an Established Power recognising formally the independence of the revolted subjects of another Established Power with which it was at peace, and at the same time, when it announced its recognition of their independence, declaring that 36 This Declaration of 15 March 1778 was delivered by the Marquis de Noailles, the Ambassador of France in London, to Lord Weymouth, the British Secretary of State for Foreign Affairs. It will be found in the Nouvelles Causes Célébres du Droit des Gens, par le Baron Ch. de Martens, Tom. I. p. 406. Lord it had entered into a treaty of friendship and commerce with them, and was determined effectively to protect its subjects in the enjoyment of their treaty privileges. England, under these circumstances, considered that the conduct of the French King was not merely an act of aggression against her, but a violation of the Law of Nations; and consequently that she was entitled to resent it, and make prize of French vessels, without any necessity of formally declaring war against France. That the British Government so determined to act after mature deliberation may be gathered from a letter of Lord Chancellor Thurlow's, in which he Letter of discusses the precedents of a Declaration of War. Chancellor "I find a doubt hath been started whether it be Thurlow, in 1778. correct to make prize or to condemn it as confiscate, and still more to distribute it to the captors, before a Declaration of War. Upon the last it is insisted, that the goods of Nations, not declared Enemies, can at most be taken as Reprisal, and detained only as pledges for satisfaction. It is said that this was done in 1754, and that no Prizes were actually condemned or distributed before Declaration of War at that period. Declaration is said to be necessary to what writers call a Solemn War, but it has been the practice of Nations in all ages to begin hostilities otherwise. What the Supreme Power of any other country may do, the King here has been in the use of doing in the matter of War against strange Nations. Therefore if you could, without trouble to yourself, order a search, I should be extremely 37 Letter of Lord Chancellor Thurlow to Philip Stephens, Esq. Secretary of the Admiralty, dated 12 August 1778, a copy of which exists in a MS. volume in the possession of the author, and Object of at home. happy to find what the course has been, especially since the Revolution in this respect, in giving orders to King's ships to take prizes, in granting commissions to Privateers, Letters of Marque and Reprisal, in proclaiming such purposes, in distributing Prizes to Captors, antecedent to Declaration of War." § 36. The object of a Proclamation of War, in the tions of War sense in which that expression is used to signify public announcement of hostilities on the part of a Sovereign Power for the information and direction of its Subjects, as distinguished from a direct notification of hostilities made to the State against which war is to be carried on, is to fix the date from which special duties attach to the Subjects of the Belligerent Power as regards the Enemy. After war has been proclaimed, no pacific relations of whatever nature can be entertained between the respective Subjects of the belligerent Powers, except under license or convention, All trade is suspended, no contracts are legal, no debts can be enforced, and no suits can be sustained by or against an enemy before the municipal tribunals of either State. Ex natura belli commercia inter hostes cessare non est dubitandum, is the language of Bynkershoek, and Valin treats it as a question beyond all dispute in his time. But there is no absolute necessity that there should have been a Proclamation of War in order to establish the legal quality of alien enemy against a Subject of a Foreign Power. In the reign of Queen Elizabeth it was held to be sufficient to show that there was a State of War in fact between the Crown of England and Spain, and that the Spaniards were actual enemies of the Queen, 38 Quæst. Jur. Publici, L. I. c. II. |