Some Questions of International Law. to put himself in a state of defence, and it is needless to say that no one asserts such quixotism to be obligatory."1 The date of the first actual or pronounced hostilities is, in fact, a better criterion of the commencement of a- war than the date of formal declaration; for the declaration may have been preceded by acts of hostility, and in such cases difficult questions are bound to arise which may lead to great uncertainty and much long and use less controversy.2 Although the modern authorities8 are still somewhat divided on this question, the gen1 Hall, op. cit. p. 374. 2 "In the eighteenth century declarations were frequently published several months after letters of marque had been granted, after general re prisals had been ordered, and even after battles had been fought; and disputes in consequence took place as to whether war had begun inde pendently of the declaration, or from the date of the declaration, or in consequence of the declara tion, but so as to date, when once declared, re trospectively to the time of the first hostilities. As the legitimacy of the appropriation of private property depends upon the existence of a state of war. it is evident that conflicts of this nature were extremely embarrassing and, where differ ent theories were in play, were altogether insol uble. To take the state of war on the other hand as dating from the first act of hostility, only leads to the inconvenience that in certain case;, as for example of intervention, a state of war mav be legally set up through the commission of acts of hostility, which it may afterwards appear that the nation affected does not intend to resent by war: and, as in such cases the nation doing hostile acts can always refrain from the capture of private property until the Question of peace or war is decided, the practical inconvenience is small." Hall, op. cit. p. 375. 3 For more or less extensive citations of the modern authorities, see Hall of. cit. pp. 379-8' and note on p. 380: Calvo, IV. 8 1906: PradierFoderc, VI, § 2673. The great French publicist. Pradier-Fodere (VI, § 2677) is of the opinion that "if declaration is not an essential condition of a regular war, it is, at least, a useful formality which States ought not to omit." The great Russian publicist. De Martens (III, 205), thinks that "neither proclamation nor diplomatic notice are obligatory, provided that the state of rela tions is such that hostilities will not be a sur prise. Hostilities which constitute a surprise, he characterizes as brigandage and piracy." The German Holzendorff (Handbuch, IV, §§ 82-84) holds neither declaration nor manifesto to be necessary, although he thinks that "a belligerent ought to give notice of some sort if he can do so consistently with his political interest and his military aims." The last two citations are given by Haïî. note on p. 3^0.
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eral practice of nations, at least since the sixteenth century, shows conclusively that declarations of war prior to the outbreak of histilities have been comparatively rare and altogether exceptional.4 So far as the writer is aware, the opinion of judges of prize courts (at least in the United States and England), who have been called upon to pass upon the validity of captures made prior to the declaration of war, is unanimous that war may exist without a declaration.5 4 "Most of the wars of the seventeenth cen tury began without declaration, though in some cases declarations were issued during their con tinuance." Hall, note on p. 377. "The nearer we approach to modern times the rarer do formal declarations become. There have been only eleven of them between civilized States since 1700, whereas the present century has seen over sixty wars or acts of reprisal begun without formal notice to the power attacked." Lawrence, p. 300. In a compilation of cases of hostilities extend ing from 1700 to the present time, Colonel Maur ice of the British army, found but n out of 118 instances in which a declaration of war preceded hostilities. Snow Manual, p. 78. In most cases declarations have, however, followed the out break of hostilities. For extensive citations of historical examples, see Hall, cited above: Phillimore. Commentaries, III, Pt. IX. r. 5; Calvo. IV, § 1908: Rivier. II, pp. 223-28. For an abstract of cases in which hostilities have occurred between civilized powers orior to declaration from 1700 to 1870, see Maur ice. Hostilities without Declaration of War (1881), and a review of this work by Prof. Hol land in the Revue de Droit International, 1885, No. 6. pp. 61-65. See also Des Hostiliiies sans Declara tion de Guerre, by M. Feraud-Giraud in the same review for 1885. No. i, pp. igfi. See also Owen, Declaration of War, 1899. It should perhaps be noted that recent wars seem to have witnessed a return to the older practice, e. g., those of 1870 and 1877. The prac tical futility of the declaration of 1877 is. how ever, shown by the fact that Turkish territory was invaded by Russia on the day of her declara tion of war on April 24. 1877. In the ChinaTapanese war of 1804-5. hostilities were begun before the declaration, and in our own recent war with Spain war was formally declared by Congress on April 25. 1808. after the capture of several Spanish vessels and the blockade of the Cuban norts on the 22nd of April. The existence of hostilities was dated back to the 2ist of April by the Declaration itself. 5 See. e. g., the opinion of Lord Stowell in I Dodson 247: of Sir W. Scott in the case of the Eliza Ann. I Dodson 244: The U. S. Supreme Court in Bas r. Tinpy, л Dallas 37. and in The Prize Cases,? Black. 6w. Lord Chief Tustice Mellish in the Teutonia. 4 Privy Council Reports 171 : and T. Locke in the Buena Ventura and Panama, 87 Fed. Rep. 927.
