For subsequent correspondence with a view to arresting hostilities, see id. 585 et seq. See, also, correspondence in 1 Br. & For. State Papers (1812-1814), 1470 et seq. The British Government, on receiving the American declaration of war in 1812, directed the commanders of vessels of war and privateers to bring into port American vessels. War had been declared by the United States without knowledge of the fact that the British Government had taken steps to revoke its orders in council, and the foregoing direction was issued in the hope that the United States, on learning what had been done, would suspend hostilities. The measure adopted by the British Government was called an order of embargo and detention. The extension of the authority to seize American vessels to privateers seems to have had no special significance. The privateers were employed merely as part of the maritime force, the nation being already at war. When the British Government, in 1793, adopted measures for the preemption of provisions, orders to bring in neutral. vessels were given to privateers as well as to commanders of ships of war. When it was found, in 1812, that the United States would not suspend hostilities, the order of embargo and detention, which was dated July 31, 1812, was followed up by a declaration of war. The order of July 31 exempted from seizure vessels with British licenses, by directing that all American vessels should be detained and brought into port, "except such as may be furnished with British licenses, which vessels are allowed to proceed according to the tenour of the said licenses." The Eliza Ann, 1 Dodson, 244. For the order of embargo and detention of American ships of July 31, 1812, see 55 Annual Register (1812), 393. In 1870 France formally declared war against Prussia. There were no prior hostilities. 2. HOSTILITIES PRIOR TO DECLARATION. § 1107. President Polk, in a message to Congress May 11, 1846, declared that American blood had been shed by the forces of Mexico on American soil, and that war existed by the act of Mexico. By an act of May 13, 1846, which recited that war existed by the act of Mexico, provision was made for carrying on the conflict. Prior to the passage of the act of Congress the battles of Palo Alto and Resaca de la Palma had been fought. Message of May 11, 1846, S. Ex. Doc. 337, 29 Cong. 1 sess.; act of May 13, 1846, 9 Stat. 9; The Prize Cases, 2 Black, 635, 668; Moore, Int. Arbitrations, II. 1247. See, also, Twiss, Law of Nations, Time of War, 69; Abdy's Kent (1878), 172. "War was formally declared by Japan on August 1, 1894, and the challenge was accepted in a counter-declaration issued by China on the following day. But hostilities were already in progress. On July 25 a Japanese squadron had been engaged with Chinese memof-war which had been convoying transports carrying reinforcements for Asan, in Korea; and Japanese troops had captured Asan itself on the 29th. A state of war existed therefore between the two countries as early as July 25; and there is nothing irregular in a war thus commenced." Holland, Studies in Int. Law, 115. For the Chinese declaration of war, Aug. 1, 1894, see For. Rel. 1894, App. As to the case of the Kowshing, see For. Rel. 1894, App. I. 44-47, 48-49, See, generally, Maurice, Hostilities without Declaration of War; Féraud- April 20, 1898, the President approved a joint resolution of Congress, by which it was declared (1) that "the people of Cuba are, and of right ought to be, free and independent;" (2) that it was the duty of the United States to demand, and that the United States did thereby demand, that Spain at once relinquish her authority and government in Cuba and withdraw her land and naval forces from the island and its waters; (3) that the President was directed and empowered to use the land and naval forces of the United States and to call into actual service the militia, to such extent as might be necessary to carry these resolutions into effect; and (4) that the United States disclaimed any disposition or intention to exercise sovereignty, jurisdiction, or control over the island except for the pacification thereof, and asserted its determination, when that was accomplished, to leave the government and control of the island to its people. On the same day the Spanish minister at Washington asked for and obtained his passports, and the text of the joint resolution was cabled by the United States to its minister in Madrid for communication to the Spanish Government. But before it could be so communicated the American minister, on April 21, received from the Spanish Government a note, in which it was stated that the joint resolution was considered as an obvious declaration of war, and that all diplomatic relations consequently were severed. On April 22 the President issued a proclamation, in which, referring to the joint resolution of Congress, he declared a blockade of ports on the north coast of Cuba from Cardenas to Bahia Honda, and of the port of Cienfuegos on the south coast. The blockade was instituted on the same day. By an act of Congress approved April 25, 1898, war was declared to have existed since April 21, inclusive, and the President was directed and empowered to use the entire land and naval forces of the United States, and to call into actual service the militia for the purpose of carrying it on. See H. Ex. Doc. 428, 55 Cong. 2 sess. War between the United States and Spain existed on April 21, 1898, when diplomatic relations were broken off, and Spain, in a communication to the United States minister at Madrid, accepted the resolution of Congress for intervention in Cuba as a declaration of war, although the formal decree by Spain, and the declaration of war by Congress, were not made until afterwards. The Pedro, 175 U. S. 354, 20 S. Ct. 138, affirming decree the Buena Ventura, 87 Fed. Rep. 927. It is universally admitted that a formal declaration is not necessary to constitute a state of war. From this principle, however, an unnecessary and perhaps unwarranted inference is often drawn, namely, that a nation may lawfully or properly begin a war at any time and under any circumstances, with or without notice, in its own absolute discretion. Such a theory would seem to be altogether inadmissible. Although a contest by force between nations may, no matter how it may have been begun, constitute a state of war, it by no means follows that nations, in precipitating such a condition of things, are not bound by any principles of honor or good faith. If, for example, a nation, wishing to absorb another, or to seize a part of its territory, should, without warning or prior controversy, suddenly attack it, a state of war would undoubtedly follow, but it could not be said that the principles of honor and good faith enjoined by the law of nations had not been violated. In other words, to admit that a state of war exists is by no means to justify the mode by which it was brought about or begun. Nor is the practice of fraud and deceit permitted by a state of war supposed to be admissible in time of peace. 3. CIVIL WAR. § 1108. "The Parliament of Great Britain by statute (16 Geo. 3, c. 5, in 1776) declared that the vessels and cargoes belonging to the people of Virginia and the twelve other colonies found and taken on the high seas should be liable to seizure and confiscation as the property of open enemies, and that the marines and crews should be taken and considered as having voluntarily entered into the service of the King of Great Britain, and that the killing and destroying the persons and property of the Americans before the passing of the act was just and lawful." Chase, J., in Ware v. Hylton, 3 Dallas, 199, 228. The late civil war began and terminated at different times in different States. Its commencement may be referred to the proclamation of blockade of the 19th of April, 1861, in those States to which it applied; and to the proclamation of blockade of the 27th of April, 1861, in the States to which it applied. Its termination may be referred, in various States, to the proclamations declaring it closed in those States. The Protector, 12 Wall, 700; Brown v. Hiatts, 15 id. 177; Adger v. Alston, id. 555; Batesville Institute v. Kauffman, 18 id. 151. A civil war exists and may be prosecuted on the same footing as if those opposing the Government were foreign invaders whenever the regular course of justice is interrupted by revolt, rebellion, or insurrection, so that the courts cannot be kept open. Civil war begins by insurrection against the lawful authority of the Government, and is never solemnly declared. When the party in rebellion occupy and hold in a hostile manner a certain portion of territory, have declared their independence and cast off their allegiance, have organized armies, and commenced hostilities against their former sovereign, the world acknowledges them as belligerents, and the contest a war. The Prize Cases, 2 Black, 635. See, also, The Amy Warwick, 2 Sprague, 123. By the majority of the court in the Prize Cases it was held that the war began with the proclamations of blockade of Apr. 19 and Apr. 27, 1861, in the places to which they were respectively applicable. The dissenting judges held that it began with the act of July 13, 1861. The State of Virginia "engaged in war against the United States' April 17, 1861, on which day the convention passed an ordinance directing the governor to call out volunteers, and he issued his proclamation, and the State authorities took possession of the custom-house in Richmond. Chesapeake & Ohio Ry. Co. v. United States, 19 Ct. of Cl. 300. V. BELLIGERENTS. 1. COMBATANTS AND NONCOMBATANTS. § 1109. "21. The citizen or native of a hostile country is thus an enemy, as one of the constituents of the hostile state or nation, and as such is subjected to the hardships of the war. "22. Nevertheless, as civilization has advanced during the last centuries, so has likewise steadily advanced, especially in war on land, the distinction between the private individual belonging to a hostile country and the hostile country itself, with its men in arms. The principle has been more and more acknowledged that the unarmed citizen is to be spared in person, property, and honor as much as the exigencies of war will admit. "23. Private citizens are no longer murdered, enslaved, or carried off to distant parts, and the inoffensive individual is as little disturbed in his private relations as the commander of the hostile troops can afford to grant in the overruling demands of a vigorous war. "24. The almost universal rule in remote times was, and continues to be with barbarous armies, that the private individual of the hostile country is destined to suffer every privation of liberty and protection, and every disruption of family ties. Protection was, and still is with uncivilized people, the exception. "25. In modern regular wars of the Europeans and their descendants in other portions of the globe, protection of the inoffensive citizen of the hostile country is the rule; privation and disturbance of private relations are the exceptions." Instructions for the Government of Armies of the United States in the "52. No belligerent has the right to declare that he will treat every captured man in arms of a levy en masse as a brigand or bandit. "If, however, the people of a country, or any portion of the same, already occupied by an army, rise against it, they are violators of the laws of war and are not entitled to their protection." Instructions for the Government of Armies of the United States in the "57. So soon as a man is armed by a sovereign government and takes the soldier's oath of fidelity he is a belligerent; his killing, wounding, or other warlike acts are not individual crimes or offenses. No belligerent has a right to declare that enemies of a certain class, color, or condition, when properly organized as soldiers, will not be treated by him as public enemies." Instructions for the Government of Armies of the United States in the "64. If American troops capture a train containing uniforms of the enemy, and the commander considers it advisable to distribute them for use among his men, some striking mark or sign must be adopted to distinguish the American soldier from the enemy. |