ed from the government of one country by the government of another country as being due to its nationals.

"This undertaking is, however, not applicable when the debtor state refuses or neglects to reply to an offer of arbitration, or, after accepting the offer, prevents any 'compromis' from being agreed on, or, after the arbitration, fails to submit to the award."

COMMENCEMENT OF WAR.

98. (a) War in the material sense may commence without previous declaration.

(b) War in the legal sense should not commence without previous declaration.

(a) The existence of war in the material sense is evident in the use of force by the parties, provided it amounts to a public armed contest.

Hall states the opinion commonly held at the end of the nineteenth century: "On the threshold of the special laws of war lies the question whether, when a cause of war has arisen, and when the duty of endeavoring to preserve peace by all reasonable means has been satisfied, the right to commence hostilities immediately accrues, or whether it is necessary to give some preliminary notice of intention. A priori it might hardly be expected that any doubt could be felt in the matter. An act of hostility, unless it be done in the urgency of self-preservation or by way of reprisal, is in itself a full declaration of intention. Any sort of previous declaration, therefore, is an empty formality, unless an enemy must be given time and opportunity to put himself in a state of defense; and it is needless to say that no one asserts such quixotism to be obligatory."

(b) Formerly war in the legal sense might begin without declaration, and most of the wars in the eighteenth and nineteenth centuries began without declaration.

Of the 143 wars between the years 1700 and 1900 there seem to have been only about 20 formal declarations, and most of these were subsequent to the actual commencement of hostilities. In a few cases war followed an ultimatum. In

certain instances the relations between the states were so strained that war was the natural sequence. In wars with savages, uncivilized peoples, insurgents, or revolutionists, there have been conditions which made declaration unnecessary.

DECLARATION OF WAR.

99. A declaration of war is now in general required before the opening of hostilities between states.

In early days wars were commenced with great formality, a herald often proceeding to the frontier and making formal announcement and receiving formal reply. The early practice is set forth in Deuteronomy, xx, as follows:

"10. When thou comest nigh unto a city to fight against it, then proclaim peace unto it.

"11. And it shall be, if it make thee answer of peace, and open unto thee, then it shall be, that all the people that is found therein shall be tributaries unto thee, and they shall serve thee.

"12. And if it will make no peace with thee, but will make war against thee, then thou shalt besiege it."

For many centuries the formal declaration of war was intrusted to the priestly class. Such declarations were made prior to the opening of hostilities. This custom was common among the Greeks and Romans. Among the Romans in the early times thirty-one days were allowed in which the offending state might render satisfaction. The constitution of Frederic Barbarosa of 1187 granted three days' notice of hostilities. Letters of defiance were common in mediæval times. The Golden Bull of Charles IV, 1356, requires that "three natural days" intervene between the "challenge of defiance" and the beginning of hostilities."

In the fifteenth century the custom of sending heralds to declare war seems to have been common. These were dispatched by the Swedish king to declare war on Denmark so late as 1657.10 The practice of issuing an ultimatum before

8 Cicero, De Officiis, I, II; Livy, I, 32.

Henderson, Historical Documents of the Middle Ages, p. 247. 10 2 Twiss, p. 61.

engaging in war received sanction of such writers as Bynkershoek. The ambition for overseas territory, the development of maritime warfare, the issue of letters of marque and reprisal, and the general change in the character of international relations led to the weakening of the claim for a prior declaration in order to make acts of war legal. It was formally declared in the decision of Lord Stowell in the case of The Boedes Lust, 1803, that this ship, embargoed before the declaration of war, was by virtue of a subsequent war liable to condemnation: "If the matter in dispute had terminated in reconciliation, the seizure would have been converted into a mere civil embargo. That would have been the retroactive effect of that course of circumstances. On the contrary, if the transactions end in hostility, the retroactive effect is directly the other way. It impresses the direct hostile character upon the original seizure." 11

Declaration of war came during the eighteenth and nineteenth centuries to be regarded merely as a convenient method for determining when the war status should be held to exist, and most of the wars of recent years have begun without declaration.12

By a proclamation of April 22, 1898, the President of the United States declared the north coast of Cuba blockaded. It was not till April 26, 1898, that a declaration of war was issued, which proclaimed that war with Spain had existed since April 21, 1898.13

The first act of hostilities between Russia and Japan in 1904 was upon February 6th, but it was not till February 10th that the declarations of war were published. Neither the Russian

115 C. Rob. 245; Scott, 460.

12 J. F. Maurice, Hostilities without Declaration of War.

"The practice of a formal proclamation before recognizing an existing war and capturing enemy's property has fallen into disuse in modern times, and actual hostilities may determine the date of the commencement of war, though no proclamation may have been issued, no declaration made, and no action of the legislative branch of the government had." The Buena Ventura (D. C.) 87 Fed. 927; Id., 175 U. S. 384, 20 Sup. Ct. 148, 44 L. Ed. 206. 18 Foreign Relations U. S., 1898, p. 772.

nor the Japanese declaration fixes the date at which the war began.14

By far the greater number of the wars in recent years have been carried on and concluded without declaration. A considerable number have been declared to exist after hostilities had already begun. A very few had been declared in advance of hostilities. Apparently there were about 10 prior declarations in nearly 150 wars since 1700.

The uncertainties in regard to the practice of declaration of war led the Second Hague Conference in 1907 to declare "that it is important that the existence of a state of war should be notified without delay to neutral powers." To this end the conference agreed upon a Convention Relative to the Opening of Hostilities, in which it is declared that:

"Article I. The contracting powers recognize that hostilities between themselves must not commence without previous and explicit warning, in the form either of a reasoned declaration of war or of an ultimatum with conditional declaration of war."

DATE OF COMMENCEMENT OF WAR.

100. (a) War in the material sense commences on the date of the first act of public hostilities.

(b) War in the legal sense commences from the date named in the declaration, and in absence of declaration from the first act of public hostilities.

In modern times the date of the commencement of war has become a matter of great importance. The existence of war imposes obligations upon neutral states. If these obligations are not regarded, a state may become liable to pay indemnity. The belligerent may also exercise certain rights over neutrals, as by visit and search of vessels. Certain articles of trade, which in time of peace may be carried freely, become liable to capture after the outbreak of hostilities. The relationship between citizens of the belligerent states is changed. Indeed, the legal effects of the change from peace to war are so farreaching that it is essential that the date of such change be definitely determined or easily determinable.

14 Takahashi, Russo-Japanese War, p. 6.

(a) In case of the existence of war in the material sense, it is essential that persons affected by the existence of hostilities, whether of the belligerent or of other states, should know at what date the relations of peace' are superseded by those of war. In absence of any official utterance to the contrary, the first act of public hostilities may be regarded as the commencement of the war.

For states that have no part in the war, the war commences from the period of their own formal recognition of the existence of belligerency, or from the time of such public act by the state party to the hostilities as is in the nature of the recognition of the existence of war, as by the proclamation of blockade by a state."

15

(b) Between the contracting states, which include practically all the leading states of the world, the Hague Convention of 1907 Relative to the Opening of Hostilities endeavored to make definite the date of the opening of hostilities. This convention recognizes that hostilities should not commence between these states without previous declaration. It is not specified that there shall be any particular time between the declaration and commencement of hostilities. Article II provides that: "The existence of a state of war must be notified to the neutral powers without delay, and shall not take effect in regard to them until after the receipt of a notification, which may, however, be given by telegraph. Neutral powers, nevertheless, cannot rely on the absence of notification, if it is clearly established that they were in fact aware of the existence of a state of war."

This convention does not, however, make any provision in regard to the commencement of a war with a party not a signatory of the convention, nor for the commencement of a civil war, and in such cases the first act of public hostilities must be taken as the date of the commencement of the war.

15 President Lincoln's proclamation of blockade April 19, 1861, was regarded as the date of the beginning of the American Civil War. The Protector, 12 Wall. 700, 20 L. Ed. 463; The Prize Cases, 2 Black, 635, 17 L. Ed. 459; The Pedro, 175 U. S. 354, 20 Sup. Ct. 138, 44 L Ed. 195.