The Laws of War, Affecting Commerce and Shipping | Page 4

subject the nation that permits them to fit out in, or issue from their ports, to the danger of reprisals, from the offended belligerents.
This I suggest as an example of the application of the principles of right and wrong, as at present understood, to the investigation of the continued soundness of an accepted precept of law. In the judgments of Lord Stowell there are many such examples; and guided as he was by precedent and authority, he could not be said to have been led by anything but the principles of universal justice. At no time does he appear for a moment to have hesitated in putting aside precedent, when the true doctrine was unsatisfied. Mr. Justice Story acted on the same plan. The granting of salvage for the recapture of neutral property--the denial of the right of the Danish Government to confiscate private debts--the declaration of Mr. Justice Story, that the slave trade was against the law of nations--are a few amongst many remarkable examples of the fundamental principle being allowed to alter and overrule the authoritative precept.

THE LAWS OF WAR.

PART I.

THE LAWS OF WAR AFFECTING COMMERCE AND SHIPPING.

CHAPTER I
. COMMENCEMENT OF WAR.

SECTION I.

The Immediate Effects of War.
For some months the state of war that has been impending between Russia, and the Allied Powers,--England, France, and Turkey,--has now become actual; and though there have been many acts of preparation and precaution on the part of England and France, we have not been, up to the present crisis, engaged in what is termed by international writers, Public and Solemn War; such a position of affairs has at last arrived.
[Sidenote: Solemn War.]
The War then, that England has entered into, is of the most Public and Solemn kind. Public War is divided into Perfect and Imperfect. The former is more usually called Solemn. Grotius defines Public or Solemn War to be such Public War as is declared or proclaimed.
Imperfect Wars between nations, that is such wars as nations carry on one against the other, without declaring or proclaiming them, though they are Public Wars, are seldom called wars at all; they are more usually known by the name of reprisals, or acts of hostility. It has often been important to determine, on the re-settlement of peace, what time war commenced, and when reprisals ceased.[2]
According to the Law of Nations, two things are required for a Solemn War; first, it must be a Public War; that is, the contending parties must be two nations, or two parties of allied nations, contending by force under the direction of a supreme executive; and secondly, it must be proclaimed, notified, or declared. And probably it must be general in its character, and not simply local or defensive. Presuming that the coming contest will be of the widest character, I shall proceed to examine its legal effects on Commerce, on that supposition.[3]
[Sidenote: Declaration of War]
Declarations have existed from the most ancient times, having been borrowed by modern nations from the manners and customs of the Romans. But in present times, (although they may be very properly put forward,) they are not necessary to a state of actual war, or as it is technically termed, to legalize hostilities. A Declaration of War is not a matter of international right.[4] Acts of hostilities, without such an instrument, cannot be denounced as irregular or piratical, unless committed in manifest bad faith. But though war may lawfully commence without an actual declaration, yet a declaration is of sufficient force to create a state of war, without any mutual attack. It is not a mere challenge from one country to another, 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 in a state of war, though, he may, perhaps, think proper to act on the defensive only.[5]
[Sidenote: War, how commenced.]
War now generally commences by Actual Hostilities, by the Recal or Dismissal of an Ambassador or Minister, or by a Manifesto published by one belligerent power to its own subjects.
Manifestoes are issued to fix the date of the commencement of hostilities; for as a state of war has many various effects on commercial transactions, such as the confiscation of certain property, and the dissolution of certain contracts, it is very necessary that such a date should be accurately known. When a Manifesto or Declaration is issued, it is said to legalize hostilities, that is to say,--to make all acts done, and all breaches committed, under pressure of war, good and lawful acts and breaches.
I have given this explanation, because it is a popular notion that a declaration always precedes war; but in reality, in modern times, few wars are solemnly declared;--they begin most often with general hostilities; thus the first Dutch War began upon