is called declaring war. All this is included in the Roman manner of proceeding, regulated in their fecial law. They first sent their chief herald, called pater patratus, to demand satisfaction of the nation who had offended them; and, if within the space of thirty-three days that nation did not return a satisfactory answer, the herald called the gods to be witnesses of the injustice, and came away, saying that the Romans would consider what measures they should adopt. The king, and in aftertimes the consul, hereupon asked the senate's opinion; and when war was resolved on, the herald was sent back to the frontier, where he declared it." (Vattel, Book iii.)

Among the ancient Germans this power belonged to the popular assemblies (Tacitus, De Moribus Germanorum, cap. ii.), and the power was afterwards continued in the same channel, and actually resided in the Saxon Wittenagemote; but in the monarchies of Europe, which arose on the ruins of the feudal system, this important prerogative was generally assumed by the King, as appertaining to the executive department of government.

In the United States of America, the power of declaring war, as well as of raising the supplies, is wisely confided to the legislature of the Union. (Kent's Commentaries, i, 60.) During the middle ages, a previous declaration of war was held to be requisite by the laws of honour, chivalry, and religion; but in modern times the practice of a solemn declaration made to the enemy has fallen into disuse, and the nation contents itself with making a public declaration of war within its own territory, and to its own people. Grotius, indeed, considers a previous demand of satisfaction and a declaration, as requisite to a solemn

and lawful war; and Puffendorff holds acts of hostility, which have not been preceded by a formal declaration of war, to be no better than acts of piracy and robbery.-(Book viii. cap. 6, sect. 9.) Emerigon (Traité des Assurances, i. 563) is of the same opinion; and Vattel (Book iii. cap. 4, s. 51), strongly recommends a previous declaration of war, as being required by justice and humanity. Bynkershoeck (Quæstiones Jur. Publ. b. i. cap. 2) maintains that a declaration of war is not requisite by the law of nations, and that, though it may very properly be made, it cannot be required as a matter of international right, and cites many instances to show, that within the last two centuries wars have been frequently commenced without a previous declaration.

Since the time of Bynkershoeck, it has become settled by the practice of Europe, that war may lawfully exist by a declaration which is unilateral only, without a declaration on either side.

"War," says Lord Stowell, in The Eliza Ann (1 Dodson, 247), "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. It proves the existence of actual hostilities on one side at least, and puts the other party also into a state of war, though he may, perhaps, think proper to act on the defensive only."

Again, in The Nayade (4 Rob. 252), Lord Stowell said:"In order to legalize a war, it must not only be commenced or declared by one of the contesting states, but such commencement or declaration must be made by that particular branch of the state which is

invested by the constitution with this important prerogative." "If," says Brooke, in his Abridgement, tit. Denizen, "all the people of England would make war with the King of Denmark, and the King (that is our own King) will not consent to it, this is not war; but when the peace is broken by ambassadors the league is broken." Thus in the war declared by the United States against England, in 1812, hostilities were immediately commenced by the former power, as soon as the act of Congress was passed, without waiting to communicate to the English government any notice of the intention of war.

It is necessary for a nation to publish the declaration of war for the instruction and direction of her own subjects, in order to fix the date of the rights which belong to them, from the moment of this declaration, and in relation to certain effects which the voluntary law of nations attributes to a war in form. Without such a public declaration of war, it would, in a treaty of peace, be too difficult to determine those acts which are to be considered as the effects of war, and those that each nation may set down as injuries of which she means to demand reparation.

"A sovereign," says Vattel (ub. sup. 64), " is not only to make the declaration of war public within his dominions, for the information and direction of his subjects, but he is also to make known his declaration of war to the neutral powers, in order to acquaint them with the justificatory reasons which authorize it, the cause which obliges him to take up arms, and to notify to them that such or such a nation is his enemy, that they may conduct themselves accordingly. This publication of the war may be called declaration, and that

which is notified directly to the enemy denunciation; and, indeed, the Latin term is denunciatio belli. War is at present published and declared by manifestoes. These documents never fail to contain the justificatory reasons, good or bad, on which the party founds his right to take up arms. The manifesto, implying a declaration of war, or the declaration itself, printed, published and circulated throughout the whole state, contains also the sovereign's general orders to his subjects relative to their conduct in the war." With regard to the United States of America, war cannot lawfully be commenced without an act of Congress, and such act is, of course, a formal official notice to all the world, and equivalent to the most solemn declaration.

"When war is duly declared," says Chancellor Kent, (1-63) "it is not merely a war between this and the adverse government in their political characters. Every man is, in judgment of law, a party to the acts of his own government, and a war between the governments of two nations, is a war between all the individuals of the one, and all the individuals of which the other nation is composed. Government is the representative of the will of all the people, and acts for the whole society. This is the theory in all governments; and the best writers on the law of nations concur in the doctrine, that when the sovereign of a state declares war against another sovereign, it implies that the whole nation declares war, and that all the subjects of the one are enemies to all the subjects of the other." The inclinations of individuals, in relation to other states, are to be considered as bound by the acts of their government. This is a principle not lightly to be departed from; it may, indeed, admit of an ex

ceptions under possible circumstances, but these must be manifested by very clear overt acts, and supported by very strong proof. (Lord Stowell, 1 Robinson, 118.)

The declaration of hostilities may operate with a retroactive force under special circumstances. Thus, in relation to The Herstelder and The Dankebaar, Dutch vessels seized before the declaration of hostilities with Holland, and subsequently condemned, Lord Stowell said (1 Rob. 116), " Though we speak of the declaration of hostilities as issued September 15th, 1795, it must be kept in mind that the state of Holland was very ambiguous for several months preceding. Subsequent events have retroactively determined that the character of Holland, during the whole of that doubtful state of affairs, is to be considered as hostile; and that the property of Dutch subjects seized under it, is to be treated as hostile; and although the declaration of hostilities has made this difference, that it gives the individual captors a right in the capture, instead of the Crown, that is a domestic regulation only."

"When hostilities have commenced, the first objects that naturally present themselves for detention and capture are the persons and property of the enemy, found within the territory on the breaking out of the war. According to strict authority (Grotius, b. 3, c. 9, s. 4, c. 21, s. 29; Bynk. c. 2 & 7, Martens, b. 8), a state has a right to deal as an enemy with personal property so found within its power, and to confiscate the property, and detain the persons as prisoners of war; but this right has been largely modified by various stipulations in treaties, which Emerigon considers an affirmance of common right or the public