ante bellum and it was not unusual to stipulate in Treaties of Peace that all places and property seized before the Declaration of War47 should be restored. The Status The Status ante bellum would, in such a case, be satisfied by ambiguous. returning to the state of possession before war had been declared. But after Nations came to engage in active hostilities before either of them had made any formal Declaration of War, the Status ante bellum would not be secured by stipulating that matters should be replaced in the state in which they were before war was declared. was declared. Thus the war between Great Britain and France, which was terminated by the Peace of Aix-la-Chapelle, may be said to have commenced with the battle of Dettingen, on 26 June 1743, which was fought between the French and English armies, the latter being commanded by the King in person, or at least by the sea fight on 9 February 1744, off Toulon, between the English fleet and the combined French and Spanish fleets. Yet no Declaration of War was made by France before 20 March 1744, nor by England until 29 March 1744, when she issued a Counter-Declaration of War. Accordingly we find that it was stipulated in the treaty of Aix-la-Chapelle (18 October 1748) that "all conquests made since the commencement of the present war shall be restored, as well in Europe as in the East and West Indies, in the state in which they are at present." Under such an agreement the Status ante bellum would only be satisfied by either party giving up all its conquests. 47 Ante denuntiationem belli. 48 Wenck. Codex Jur. Gent. 49 Vattel has fallen into an inaccuracy in speaking of this provision of the treaty of Aixla-Chapelle, as if it referred to all prizes made before the declaration of war. L. III. § 56. Declaration reciprocal § 40. When one Nation declares war against an- Unilateral other Nation, writes Grotius, the Declaration becomes of War reciprocal 50. Upon this principle Lord Stowell held sanctions that a Declaration of War on the part of Sweden hostilities. against Great Britain was not a mere challenge on its part to be accepted or refused by the other country, but proved the existence of actual hostilities on one side at least, and put the other party also into a State of War, although it might think proper to act on the defensive only 51. Cases have occurred in which a hostile demonstration has been held to amount to a virtual declaration of war, and to be a justification for having recourse to arms without any formal Declaration of War. Such seems to have been the justification under which the British fleet, commanded by Admiral Byng, on II August 1718, destroyed the Spanish fleet at Passaro. The English ambassador at Madrid had previously warned the Spanish Prime Minister, Cardinal Alberoni, that if the threatened invasion of Sicily was not abandoned, England would oppose Spain with all her power, and had communicated to him the orders, which the English Admiral had received, to hinder and obstruct the invasion. Alberoni in reply sent a note to the effect, that the English Admiral might execute the orders, which he had received from the King his master. In this case, if the English Admiral had waited for his Government to issue a formal Declaration of War, Spain would have been enabled to destroy the ally, whom the English fleet had been sent to protect. The necessity, therefore, of the case sanctioned immediate action, but the answer itself of Alberoni, in accepting 50 L. III. c. 3. § vii. 2. son, 247. "The Nayade," 4 Recall or Envoys. the alternative, might be regarded as a virtual declaration of war. War was in fact commenced from the battle of Passaro, although England did not formally declare war against Spain until December 17, 1718; but when the treaty of 52 Madrid (June 31, 1721) came to be negotiated, it was provided that all the vessels and effects seized by either Spain or England, either before or after the Declaration of War, should be restored. § 41. The recall or dismissal of a resident Envoy is of resident generally considered as equivalent to a declaration of war, although we find occasional instances where friendly relations have been suspended by that event, without war resulting therefrom. In certain treaties of commerce provision has been made that a rupture of peaceful relations shall not be held to exist, until after the recall or dismissal of the respective Envoys or Ministers of the contracting parties. Such a provision is found in the Treaty of Rio Janeiro, between Great Britain and Portugal; and in the Treaty of Rio Janeiro, between Great Britain and Brazil5*; and in Treaties concluded between Brazil and France in 1826, Brazil and Prussia in 1827, and Brazil and Denmark in 1828. "If there should arise "If there should arise any misunderstanding, breach of friendship, or rupture, between the two Crowns (which God forbid), the rupture shall not be deemed to exist until after the recall or departure of their respective diplomatic agents," is the provision which is found in these treaties. This is a very wise and reasonable arrangement, which if it should be ever generally adopted, would prevent all Treaties. 52 Schmauss, Corpus Jur. Gent. Academicum, p. 2143. 53 Treaty of Commerce between Great Britain and Portugal, 19th February 1816. Art. XXXI. Martens, N. R. III. p. 213. 54 Treaty of 17 August 1827. Martens, N. R. VII. p. 479. disputes and difficulties as to the true date of the legal commencement of War. As War puts an end to all amicable intercourse between the Subjects of the belligerent Powers, and abrogates all antecedent treaty engagements, it seems reasonable that its legal commencement should be marked by the formal cessation of amicable intercourse between the Governments. In the absence of any special treaty arrangements on this subject, the general rule as regards belligerents seems to be this, that a State of War may exist between them without any Declaration of War on either side. It may begin with mutual hostilities, and the legitimate consequences of war will ensue from the immediate commencement of such hostilities. But with regard to other Nations, they are not charged with the duties of neutrality until a State of War between the belligerents has been officially announced to them, or until they have otherwise acquired a positive knowledge of its existence. War may exist notoriously 56, in which case it is not competent for a neutral Power to refuse to recognise its existence. On the other hand if a third Ignorance party is bond fide ignorant of the existence of a war ties on the between two other parties, there is no foundation in Neutr his case for the duties which the Law of Nations attaches to the Neutral Character, for he is unconscious that he has any occasion to act in that character. Under the circumstances of such bona fide ignorance of the existence of war between Great Britain and France, two Spanish vessels resisted the exercise of the right of visitation and search by a British cruiser57. Notwithstanding such resistance on 55 Sir W. Scott in the "Eliza Anne." Dodson, p. 247. 56 La Nuestra Senora de la Caridad. 4 Wheaton, p. 497. 57 The San Juan Baptista and La Purissima Conception. 5 Robinson, p. 34. of hostili part of Neutrals. |