"88, by the Spanish Armada, and yet there was no War "declared or proclaimed between the two Crowns, as "appears by Camden, sub anno 31 (b), ibidem p. 404, et "ibidem p. 466 (c); so that a state of War may be between "two kingdoms without any proclamation or indication "thereof, or other matter of record to prove it.

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"And therefore in the case in question touching treason, "it shall upon the trial be inquired by the jury, whether "the person, to whom the party indicated adhered, were an enemy or not, and, in order to that, whether there were a War between the King of England and that other "Prince whereunto the party adheres. This is purely a "question of fact, and triable by the jury, and accordingly "is the book 19 E. 4. 6.; and the reason is plain, because "it may fall out, that though there were a league between "the King of England and a foreign Prince, yet the War "may be begun by the foreign Prince. Again, suppose we, "that the King of England and the King of France be in "league, and no breach thereof between the two Kings, yet "if a subject born of the King of France makes War upon "the King of England, a subject of the King of England "adhering to him is a traitor within this law, and yet the "Frenchman that made the War is not a traitor but an enemy, and shall be dealt with as an enemy by martial "law, if taken; this was the case of the Duke of Norfolk "adhering to the Lord Herise, a subject of the King of "Scots, in amity with Queen Elizabeth, that made an “actual invasion upon England without the King's commis"sion (d): so that an enemy extends further than a King or

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(b) Viz. 1588.

(c) Sub anno 1592.

(d) M. 13 & 14 Elizabeth, Co. P. C. p. 11.

Camden's Elizabeth, sub anno 1571, and also 1572, in principio.

14 Elizabeth, p. 175, and the case of Perkin Warbeck, a Frenchman,

7 Coke's Reports.

Calvin's case, 6 Dyer's Reports, p. 145, n. (a).

Sherly's case, 7 Coke's Reports.

Calvin's case, ib. 6, n. (a)

"State in enmity, namely, an alien coming into England in "hostility" (e).

Mr. Justice Blackstone, after commenting upon the rule of the Roman Law (f), which distinguishes enemies from robbers, and upon the reasoning of Grotius with respect to a declaration of War, goes on to say, "So that, in order to "make a war completely effectual, it is necessary with us in England that it be publicly declared and duly proclaimed "by the Sovereign's authority; and then all parts of both "the contending nations, from the highest to the lowest, are "bound by it" (g).

The English Courts have holden that they will take judicial notice that a War exists between this country and a foreign State, such War having been recognised in different Acts of Parliament; and, therefore, that an allegation to this effect need not be proved (h).

The English Courts have also holden that the public acts of Government, and acts by the King in his political capacity, are commonly announced in the Gazette, published by the authority of the Crown; and of such acts the Gazette is admitted in Courts of Justice to be good evidence. A proclamation for reprisals, published in the Gazette, is evidence of an existing War. Proclamations for a public peace, or for the performance of a quarantine, and any acts done by or to the King in his regal character, may be proved in this manner; and upon the same principle, articles

(e) Hale, pp. 163–4.

(f) "Hostes sunt, quibus bellum publicè populus Romanus decrevit, vel ipsi populo Romano; ceteri latrunculi vel prædones appellantur. Et ideo qui a latronibus captus est, servus latronum non est, nec postliminium illi necessarium est. Ab hostibus autem captus, ut puta a Germanis et Parthis, et servus est hostium, et postliminio statum pristinum recuperat.”—Dig. xlix. t. xv. s. 24.

"Hostes hi sunt, qui nobis, aut quibus nos publicè bellum decrevimus; cæteri latrones aut prædones sunt."-Ib. L. t. xvi. s. 118. (g) Commentaries on the Laws of England, b. i. c. vii. s. 3. (h) Rex v. Roberts & Others, 1 Campbell's Reports, 399.

of War, purporting to be printed by the King's printer, are allowed to be evidence of such articles (i).

In the Case of the Nayade, which has been already cited (k), Lord Stowell decided that War might exist, so far as the rights of a third State were concerned, between two other States without any formal declaration; the point is perhaps not so clear when the question is between two States, one of which only has declared War, and of which declaration the other State has taken no public cognizance. This is a question rather of Public than International Law, but it should be mentioned that in a subsequent case in 1812, in which a question arose about the capture of a Swedish vessel by a British ship, Lord Stowell observed"The point on which the captors rely for condemna"tion in the present case is, the legal incapacity of the "claimants in their real character to carry on the trade "in which they had engaged. What was the relative "situation of British and Swedish subjects at the time "when this capture took place? Sweden had issued a "declaration of War against this country, but that had "not been echoed by any counter-declaration on the "part of Great Britain; neither had the British Govern"ment caused any notification to be made to its own subjects respecting the fact of the Swedish procla"mation. It might, perhaps, be a question of some nicety, to determine how far this unilateral declaration, "not acted upon or even notified to them by the Govern"ment of their own country, would affect the right of "British subjects to carry on their accustomed intercourse with the ports of Sweden ” (1).

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Lastly, I should observe that I am unable to agree with the learned and able Calvo (m) that a formal declaration of War

(i) Russell on Crimes, vol. ii. p. 805.

(k) Vide ante, p. 86.

(1) The Success, 1 Dodson's Adm. Rep. 133.

(m) Le Droit Inter. t. ii. p. 33. ed. 1872.

must precede the beginning of hostilities. This opinion is founded on the theory that the declaration of Paris (1856) has altered the previously existing usage and practices (n) which constitute the law on this subject. This opinion seems to me, at present, as incorrect as it would be to maintain that nations are obliged by that declaration to submit their disputes to arbitration.

(n) Vide ante, p. 50, and vol. i. part i. c. 3.

VOL. III.

I

CHAPTER VI.

HOW WAR AFFECTS THE RELATIONS OF ALL STATES.

LXVII. WAR effects a change in the mutual relations of all States; more immediately and directly in the relations of the belligerents and their allies, but mediately and indirectly in the relations of States which take no part in the contest.

War, of necessity, brings with it new rights to the belligerent and new obligations to the neutral. It is not, as it is sometimes inaccurately expressed, that there ensues a collision between the rights of the two parties, because a collision of rights is, accurately speaking, impossible, but that the rights of the neutral were always subject to the contingency of being affected and modified by War; for "every duty is a limitation of some power" (a). And as War is a lawful mode of obtaining redress and adjusting differences between Independent States, and as this end requires that compulsory means of destruction and distress should be inflicted upon the persons and property of the enemy (b), no Neutral State has a right, for the sake of private advantage, to prevent these compulsory means from producing their effects.

It matters not whether the War be called offensive on the one side, and defensive on the other. It may happen that

(a) Burke: Appeal from the New to the Old Whigs. Burke's Works, vol. ix. p. 202.

(b) "Neque enim bellum gerere, quicquam aliud est, quam id, quod quis sibi deberi existimat, manu extorquere ab invito et renitente Principe vel Populo."-Bynk. Q. J. P. 1. i. c. iv.