ing war and merely committing acts of war in the sense of acts involving the employment of force. Congressional Globe, 42 Cong. 1 sess. (1871). pt. 1, pp. 252,250, 294, 305, ̧ et seq.; also, pt. 2 and appendix, pp. 51, 62, et seq. With reference to a request made to an American naval officer to recover by force a quantity of silver belonging to a citizen of the United States, which had been seized by an officer of the Mexican Government in that country, the Department of State said: "If the latter [the American naval officer] had himself seized the bullion by force, as was expected, the Mexican Government would probably have regarded this as an act of hostility for which this Government would have been required to make amends. The President is not authorized to order or approve an act of war in a country with which we are at peace, except in self-defense. This is a peculiarity of our form of government, which at times may be inconvenient, but which is believed to have proved and will in future be found in the long run to be wise and essential to the public welfare." Mr. Hunter, Act. Sec. of State, to Mr. Turner, consul at La Paz, Mexico, See, also, Mr. Hunter, Second Assist. Sec. of State, to Mr. Wilson, consul "By the Constitution, Congress alone has the power to declare a national or foreign war. It can not declare war against a State, or any number of States, by virtue of any clause in the Constitution. The Constitution confers on the President the whole executive power. He is bound to take care that the laws be faithfully executed. He is Commander in Chief of the Army and Navy of the United States, and of the militia of the several States when called into the actual service of the United States. He has no power to initiate or declare a war either against a foreign nation or a domestic State. But by the acts of Congress of February 28th, 1795, and 3d of March, 1807, he is authorized to call out the militia and use the military and naval forces of the United States in case of invasion by foreign nations, and to suppress insurrection against the government of a State or of the United States. If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority. And whether the hostile party be a foreign invader, or States organized in rebellion, it is none the less a war, although the declaration of it be unilateral. Lord H. Doc. 551-vol 7-12 Stowell (1 Dodson, 247) observes, 'It is not the less a war on that account, for war may exist without a declaration on either side. It is so laid down by the best writers on the law of nations. A declaration of war by one country only, is not a mere challenge to be accepted or refused at pleasure by the other.'" Grier, J. The Prize Cases (1862), 2 Black, 668. IV. COMMENCEMENT OF WAR. 1. DECLARATION. $1106. "Unfortunately the anticipations of security for their vessels and citizens created by the treaty of 1796 between the United States and Tripoli were by no means realized. On the contrary, the flag of this country on the high seas was still disregarded by Tripolitan cruisers, which captured its vessels and made prisoners and slaves of those found on board of them. The patience of Congress was at length exhausted by such outrages, and the act of the 2nd of February 1802 was passed for the protection of commerce and seamen of the United States against the Tripolitan cruisers.' This was virtually a declaration of war against Tripoli. The manner in which the war was prosecuted by this Government and its result, are historical facts too notorious to be expatiated upon. Peace was restored by the treaty of the 4th of June 1805, between the United States and the Bashaw Bey and subjects of Tripoli." Mr. Fish, Sec. of State, to Aristarchi Bey, Turkish min., Sept. 18, 1876, President Madison, in a special message to Congress, June 1, 1812, after enumerating the grievances against Great Britain, said: "We behold, in fine, on the side of Great Britain, a state of war against the United States; and on the side of the United States, a state of peace toward Great Britain." The message ended without expressly recommending any specific action. It was received in each House with closed doors. On June 3, Calhoun, in a report from the House Committee on Foreign Relations, recommended "an immediate appeal to arms." The House passed a bill declaring war, and on the 5th of June sent it to the Senate with a request that it be considered confidentially. The Senate on June 17 passed the bill with amendments. On June 18 the House concurred, and the bill became a law by the signature of the President. Message of June 1, 1812, Am. State Papers, For. Rel. III. 405, 407; Cal- 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 por: 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), "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 |