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

as piracy; and the highest authorities have pronounced it a
crime.
Are not then the foundations of the laws that governed this case
changed? It may be going too far to declare it piracy by the Law of

Nations, but is it asking too much, in calling upon our maritime
tribunals to proclaim the practice contrary to the Law of Nations; to
deprive these privateers of the protection of neutrality, when in their
native waters, and to 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