whether that exist in king, emperor, or congress, as the representative of the body of the nation. The right to determine the question of the necessity of an appeal to force for the prosecution or recovery of a national right, for the protection of the national security by the infliction of punishment as an atonement for a national injury, or as the means of averting a threatened danger to national interests, is an inseparable incident to a salutary government. It has been called "one of the rights of majesty." The sovereign power of the state, whether the hereditary or elected representative of the people (who constitute the state), can alone be the author of war. By that order it is invoked. In that name it is conducted. By that power alone armies are The war-mak- enlisted, and navies are constructed and manned, and all the human agencies of warfare are but instruments in the hands and control of that power. ing power. "In order to legalize a war, it must be commenced or declared," says Lord Stowell, "by that particular branch of the state which is invested by the constitution with this important prerogative." "If," says Brooke, "all the people of England would make war with the king of Denmark, and the king (that is, our king) will not consent to it, this is not In the United States, the power of declaring The war-mak- war, as well as that of raising all the requisite the U. States means and supplies for its prosecution, by the express provisions of the constitution of the govern. ing power in *vested solely ' Hazlitt's and Roche's Manual of Maritime War, p. 2. ment, is confided exclusively to the Congress of the in the federal nation." Congress. This right of majesty, this highest attribute of the sovereignty of a state, and without which it must of necessity cease to be sovereign, by the positive terms of the written constitution, ordained and established by the people of the United States, "in order to form a more perfect union" than that which had previously existed under the articles of confederation of the several states-is absolutely surrendered by the several states (which, by their people, in convention assembled, adopted and ratified that constitution) into the hands of the leg islative department of the national government. Not only is this done by the provision referred to, expressly conferring the sovereign power upon the federal Congress, which would necessarily exclude the idea of its existence elsewhere, but, as if to guard against the possibility of error, resulting from the hitherto prevailing sentiments in favor of the independent sovereignty of the several states, this right of majesty, this sine qua non of sovereignty, is declared to be shorn from the several states, by the most positive terms of the federal constitution. By section 10 of the 1st article, it is pro- The sovereign vided, that "no state shall engage in war, or keep dered by the troops or ships of war in time of peace, or enter in- several states. to any agreement or compact with another state or with a foreign power," or, in fact, possess the power of doing any of those things which are essential incidents of the war-making power, such as "to grant letters of marque and reprisal, coin money, emit bills of credit, make any thing but gold and silver 1 Const. of U. S., Art. 1, § 8. power surren Formal declaration consid coin a tender in payment of debts, or pass any bill of attainder," etc. The dogma of independent state sovereignty has been adhered to with a pertinacity, which (in view of the carefully expressed and unambiguous provisions of the constitution of the United States, requires no ordinary degree of charitable forbearance to designate as honest), until at length it has brought forth its legitimate and bitter fruit, in a foolish, and wicked, and causeless rebellion of those states whose leaders have adopted it, and which can only be happily terminated by the utter extinction of this pernicious heresy." In the early ages of political societies, a war comered requisite menced without a solemn declaration, was considin early ages. ered informal and irregular, and contrary to the established usage of nations. It was so regarded down even to the time of Grotius, who, admitting that a declaration was not required by the law of nature, declares, nevertheless, that the law of nations demands it. The Romans granted no triumphs for any war which was not preceded by a formal declaration. During the era of chivalry, the rules of which required the fullest notice of intention to an adversary, that he might have abundant opportunity to prepare for his defence, declarations of war were heralded and proclaimed with the greatest solemnity, and clothed with all those formalities which the habits of knighthood had carried into the customs of general warfare. With the decline of chivalry such declarations were gradually discontinued, although Clarendon, in his Grotius, De Jure, Lib. III., c. iii., § 6. History on the Rebellion, speaks in terms of censure of the war in which the Duke of Buckingham went to France, as entered into "without so much as the formality of a declaration by the king, containing the ground and provocation and end of it, according to custom and obligation in the like cases." Puffendorff, Vattel, Emerigon, each contend for the necessity of a public declaration before the commencement of a war, as required not only by the law of nations but by justice and humanity; and the former holds acts of hostility not preceded by a formal declaration of war, to be acts of piracy and robbery. Bynkershoek, however, maintains that the law of nations does not require a declaration of war to precede the act, and cites numerous precedents to sustain his position. Such is the modern doctrine, and the well settled No declaration required by practice of the nations of Europe as well as of the the existing United States. "War," says Lord Stowell, "may lawfully exist without a declaration on either side. It is so laid down by the best writers on the law of nations." law of nations. In the war declared by the United States against Great Britain in 1812, hostilities were commenced by the United States, immediately upon the pas sage of the act of Congress, and without waiting to communicate any notice of intention to the English government. But although no previous declaration Proclamation of intention to the adversary, be required as a jus- requisite for tification of hostilities, yet such a declaration, by and guidance public act, proclamation, or manifesto, is essentially neutrals. information of citizens and necessary for the instruction and direction of the citizen, whose individual rights are materially affected, as the direct result of a war in form. Without such a declaration, too, it would be impossible to determine, whether the rights of the citi zen are impaired, as a legitimate effect of war, and for which no redress can be demanded in a treaty of peace, or whether the injuries that he has sustained are such as to demand reparation. But not only is such a declaration requisite for the information and direction of the citizen, but it is equally necessary for, the instruction of the citi zens or subjects of neutral powers. The knowledge of the existence of hostilities between belligerents, imposes upon neutrals certain duties and obligations, the strict observance of which alone entitles them to that protection in person and property, which is accorded to those who, in time of war, take no part in the contest, but remain common friends of both parties, without favoring the aims of the one to the prejudice of the other. By the constitution of the United States, war of Congress is cannot lawfully be commenced against a foreign a formal decla- power, without an act of the Congress of the nation, and such an act undoubtedly operates as a formal and official notice to all the world, and is, of itself, equivalent to the most solemn and formal declaration.1 In the United equivalent to a ration. 2 "When war is duly declared," says Chancellor Kent, "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 1 Haz. & Roch. Mar. Law, 8. 2 Kent's Com., Vol. I., p. 63. |