form of an assertion that a manifesto must be published, it is so enfeebled as to be meaningless. To regard a manifesto as the equivalent of a declaration, is to be satisfied with a fiction, unless it be understood that hostilities are not to commence until after there is a reasonable certainty that authenticated information of its contents has reached the enemy Government. The use of a declaration does not exclude surprise, but it at least provides that notice shall be served an infinitesimal space of time before a blow is struck. A manifesto, apart from the reservation mentioned, is quite consistent with a blow before notice. The truth is that no forms give security against disloyal conduct, and that when no disloyalty occurs, States will always sufficiently know when they stand on the brink of war. 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; but to imagine a duty of giving notice to an enemy, is both to think incorrectly and to keep open a door for recrimination in cases, which may sometimes arise, when action, for example on conditional orders to a general or admiral, takes place under such circumstances that a manifesto cannot be previously published. If the above views are correct, the moment at which war begins is fixed, as between belligerents, by direct notice given by one to the other, when such notice is given before any acts of hostility are done, and when notice is not given, by the commission of the first act of hostility on the part of the belligerent who takes the initiative." *

* HALL. Edit, 1880. p. 321.

$173.

"As between belligerents and neutrals however, says Mr. Hall further, the case stands differently. Neutrals are affected by duties and are exposed to liabilities. It is due to them as friends that a belligerent shall not, if possible, allow them to find out incidentally and perhaps with uncertainty that war has commenced, but that they shall be individually informed of its existence. Hence it

is that it has long been a common practice to address a manifesto to neutral States, the date of which serves to fix the moment at which war begins; and it is evident that, when practicable, the issue of such a manifesto is not only convenient, but is as obligatory as an act, which after all is one of courtesy, can well be. Where war breaks out at a moment which is not determined by the respective Government engaged, or by that which has just done acts of war, as for example when it results from conditional orders given to an armed force, or from an act of self-preservation on pacific intervention being regarded as hostile, a manifesto cannot of course be issued. In such cases it is the clear duty of belligerents to give every indulgence to neutrals; and where war breaks out through the performance of an act which one of the two parties elects to consider hostile, the date of its commencement, though carried back as between the belligerents to the occurrence of the hostile act, must be taken as against neutrals to be that of the manifest through which third Powers become acquainted with the fact of war." *

"But if a declaration of war is no longer necessary, says Woolsey, a State which enters into war is still bound, (1.) to indicate, in some way, to the party with whom it has a difficulty, its

*HALL. p. 496.

altered feelings and relations. This is done by sending away its ambassador, by a state of nonintercourse, and the like. (2.) It is necessary and usual that its own people should have information of the new state of things; otherwise their persons and property may be exposed to peril. (3.) Neutrals have a right to know that a state of war exists, and that early enough to adjust their commercial transactions to the altered state of things; otherwise a great wrong may be done them. Such notice is given in manifestos. * These documents, says Vattel, never fail to contain the justificative reasons, good or bad, for proceeding to the extremity of taking up arms. The least scrupulous sovereign would 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, which is published all over the State, contains also the general orders to his subjects relative to their conduct in the war." †

competent to

§ 174. As stated before (§ 24), the internal The authority and external sovereignty of a State is represented declare war. by its Government, the organ through which the intercourse, which a State as body-politic has with other States, must take place. Thus a lawful war between civilized Nations can only be waged in the name of the supreme power which, in conformity with their respective constitution or public law (§§ 24, 37 & 38), represents the Government of the respective States. Colonial Governments receive, by special enactments of the public law of the mother country, the power to wage war against uncivilized Nations or tribes.

* WOOLSEY. p. 201.

VATTEL. Book III. 4. § 64.

Effect of the

declaration of

peaceable inter

course between

private individuals of the

belligerent States.

$175. The effect of war upon treaties and war on mutual conventions has already been described under paragraph 138 in chapter XIX, dealing with treaties and conventions. Besides abrogating or suspending certain kinds of treaties, as noted above, war puts practically an end to many mutual peaceable transactions between private individuals of the belligerent States, but legally only so far as the suspension or extinction of private or commercial contracts is the legal result of the necessary suspension or abrogation of treaties and conventions, through the state of war, or the consequence of expressly notified prohibition of all intercourse with the enemy. War can therefore not be regarded as putting, per se, legally an end to all pacific and innocent relations between the private individual subjects or citizens of hostile States.

Dr. Woolsey's statements.

"If each and all on the one side, says Dr. Woolsey, were enemies to each and all on the other, it would seem that every person had a right, so far as the municipal code did not forbid, to fall upon his enemy wherever he could find him; that, for instance, an invading army had a right to seize on all the property and persons within reach, and dispose of them at discretion. But no such unlimited enmity is now known in the usages of Nations."

"The old strict theory in regard to a state of war was that each and every subject of the one belligerent is at war with each and every subject of the other. Now as it was also a received rule that the persons and goods of my enemy belong to me if I can seize them, there was no end to the amount of suffering which might be inflicted on the innocent inhabitants of a country within the

$175.

regular operations of war.* It is needless to say that no Christian State acts on such a theory, nor did the Greeks and Romans generally carry it out in practice in its extreme rigor. În particular there is now a wide line drawn between combatants and non-combatants, the latter of whom, by modern practice, are on land exempted from the injuries and molestations of war, as far as is consistent with the use of such a method of obtaining justice."†

In a note at the end of § 124 of his work above quoted, Dr. Woolsey makes the following remarks.

"In the Letters of Camillus, written by Alexander Hamilton just after Jay's treaty in 1795, this subject is considered at length, particularly in letters 18-20 (Works, vol. vii). In letter 19 he examines the right to confiscate or sequestrate private debts or property on the ground of reason and principle. He admits at the outset the proposition that every individual of the Nation. with which we are at war is our enemy, and its property is liable to capture. To this there is one admitted exception respecting enemy's property in a neutral State, but this is owing to the right of the neutral alone. Reason,' he maintains, suggests another exception. Whenever a Government grants permission to foreigners to acquire property within its territories, or to bring and deposit it there, it tacitly promises protection and security. The property of foreigners placed in another country, by permission of its laws, may justly be regarded as a deposit of which the society is a trustee. How can it be reconciled with the

*

6

Comp. KENT, I., 64, MANNING, 2nd Ed. p. 166, has a somewhat opposite view, which depends on a quasi legal theory. If war is a condition of non-peace, there may be active and passive persons in this condition. The latter are the inhabitants who have no share in

hostilities.

+ WOOLSEY. Edit. 1879. pp. 201 & 207,