calculated to give rise to strained relations with the government of the insurgents in the event of its independence being recognized.'

Recognition of Independence. In addition to the recognition of belligerent rights in behalf of an insurgent government, a state may, and, in the case of a successful rebellion, must, sooner or later, recognize the independence of the state which has come into being as the result of an exercise of the right of revolution. If the independence of the new state be recognized during the continuance of hostilities, the parent state may regard it as an unfriendly, or even as a hostile act. Such recognition, however, in some form is a necessary prelimi

ance with the laws of war.-Hall, pp. 39-42; Woolsey, § 180; Proclamation of President Lincoln, April 19, 1861, 12 Stat. at Large, p. 1258.

The policy of most modern states in the matter of recognizing the belligerency of revolted communities is one of extreme conservatism. This for the reason that neutral rights and obligations come into operation as a consequence of such recognition, and with them the onerous restrictions upon the maritime commerce of neutral states which are incident to a state of war. This is shown in the failure of the United States to accord such recognition to any of the numerous insurrectionary movements in the island of Cuba, some of which have come very near to fulfilling the essential conditions of belligerency, and many of which have appealed strongly to the sympathies of the American people.-Hall, pp. 31-37: I Dig. Int. Law, § 60. When a civil war rages in a foreign nation, one part of which separates itself from the old established government and erects itself into a distinct government, the courts of this country must view such newly-constituted government as it is viewed by the

legislative and executive departments of the Government of the United States.-United States vs. Palmer, 3 Wheaton, 610. If the government remains neutral, but recognizes the existence of a civil war, the courts of the country cannot consider as criminal those acts of hostility which war authorizes, and which the new government may direct against its enemy.— Ibid. Though the independence of Buenos Ayres has not been acknowledged by the United States, we have recognized the existence of a state of civil war between Spain and its colonies, and each party to that war is respected by us in its exercise of all belligerent rights, including the right of capture.-The Santissima Trinidad, 7 Wheaton, 283 [337]. To create the right of blockade and other belligerent rights, as against neutrals, it is not necessary that the party claiming them should be at war with a separate and independent power; the parties to a civil war are in the same predicament as two nations who engage in a contest and have recourse to arms.-Prize Cases, 2 Black, 635.

nary to the admission of the new state into the family of nations.'

The Right to Declare War, or to Initiate Hostilities, in Whom Vested. The right of declaring war is an essential attribute of sovereignty. It is the act of the supreme governmental authority of a state, and is limited in its exercise, if at all, only by the constitution or fundamental law of the state by whom, or in whose behalf, it is exercised. In former times the power to declare war, or otherwise involve a state in hos

tilities, was vested in the sovereign; the present tendency is to restrict his power in this regard, usually by requiring such declaration to be made, or sanctioned, by the supreme legislative authority; this is especially the case in states in which representative institutions exist. In the United States the power to declare war is vested, by the Constitution, in the Congress; but as it may exist without being declared-as in case of invasion by a foreign power, or when insurrection or rebellion exists—it may be met and repelled by the President, as the constitutional commander-in-chief. The power to declare war, or to recognize its existence, was formerly delegated to colonial governments, and even to commercial companies; such delegation of authority, however, is no longer recognized, and the power to initiate hostilities is now held to be exclusively lodged in the central government of the state. This does not prevent distant dependencies from recognizing the fact of war, if declared by another power; and they may resist invasion, or even carry the war into the territory of the enemy.'

Formal Declaration of War. In former times war was declared with great formalities. This is no longer the case, the formal declaration having ceased when the necessity for its existence had passed away. When the relations of two states become strained the fact is at once known throughout the

' Constitution of the United States, article i. § 8, par. 11. Congress may authorize general hostilities, in which case the general laws of war apply to our situation, or partial hostilities, in which case the laws of war, so far as they actually apply to our situation, must be noticed.-Talbot vs. Seeman, I Cranch, 1 (28).

The Prize Cases, 2 Black, 635, 668. A state of actual war may exist without any formal declaration of it by either party; and this is true of both a civil and a foreign war.-Prize Cases, 2 Black, 635. The United States may be engaged in war, and have all the rights of a belligerent, without any

civilized world, and the subjects of the unfriendly powers have sufficient time to arrange their business affairs and to accommodate their legal relations to the changed conditions. When all attempts at peaceable adjustment have failed, diplomatic intercourse ceases, ministers are withdrawn, and the military and naval forces of the belligerents are mobilized and placed upon a war footing. So far as the opposing nations are concerned, no further declaration is now regarded as necessary.1

Official Notification of an Intended Resort to War. Although the practice of making formal declarations no longer obtains, a state which assumes a belligerent attitude towards another is obliged to give public notice of its intention in each of the following cases: 1st. To its own subjects; 2d. To neutrals. This notice is frequently given by proclamations which contain a statement of the cause of the war and of the purposes or motives for which it is undertaken. They also contain the date after which a state of hostility will legally exist. This is a matter of great importance, in that it enables neutral powers to give effect to their neutrality laws, to issue proclamations of neutrality, and to fix the date upon which their neutral obligations become binding. No declaration, or notice, is required from the state which acts on the defensive."

III Phillimore, pp. 85-105; I Halleck, pp. 476, 477; II Twiss, pp. 64-68; Levi, p. 281; Boyd's Wheaton, §§ 297, 297a; Hall, pp. 374-382; II Ortolan, pp. 11-24; II Ferguson, pp. 262-267; Walker, Manual, p. 104; Lawrence, Int. Law, § 161. For the text of the Declaration of War against Spain, adopted by the Congress of the United States on April 25, 1898 (30 Stats. at Large, p. 364). examples of hostilities without declaration of war, see vol. xvii. Revue de Droit International, pp. 19-49. With a view to safeguard to some extent the interests of

For

neutrals, and to charge belligerents with a definite duty of notification, the Second Peace Conference at The Hague adopted a conventional rule providing that hostilities should not begin without previous and explicit warning, in the form of a declaration containing a statement of the reason justifying a resort to force, or of an ultimatum accompanied by a conditional declaration of war. For rest of this agreement, see Appendix F, Convention No. 3.

Vattel, liv. iii. chap. iv.; II Ferguson, pp. 262-267; Hall, pp. 380382; II Ortolan, pp. 11-24; II

Effects of a State of War. The direct effects of a state of war are: Ist. To place both the belligerent states and their subjects in a condition of non-intercourse with each other. 2d. Each citizen of one state becomes the legal enemy of every citizen of the other.' This state is legal, not actual, for no subject of either state can take the life of an enemy, or make captures on land or sea, or do any hostile act, without the express authority of his government. Commercial intercourse between subjects of the belligerent states becomes illegal. Contracts and other legal obligations are suspended during the continuance of hostilities, and a similar rule is ap