The Madisonian. [volume] (Washington City [i.e. Washington, D.C.]) 1837-1845, 1841-10-09

nenf, by our lae as IL they had been born and al
seays resided IN this country. s,a.ss,is .f....
will not, therefore, dispute the construction which
counsel put upon the language ofthe acts Of England
TO test the law Of the transaction, win concede that
she had by act Of Parliament, conferred all the power
which can be contended for in behalf Of the Cana
dian authorities, far she could do So"
This, We confess, is meeting the question
boldly; and we accept, for the sake of the argu-
ment, and Tor the present, the concession OF the
sutiiciency OF the power conferred on the Cana
dian authorities. Before we leave the subject,
however, we will dispense with this concession,
and establish the sufiicency of this power, by
the most clear and conclusive authorities
Upon the question as before stated by Judge
Cowen, he applies TO il the law Of nations, as
follows:
"To warrant the destruction of property, or the ia
KING Of life, on the ground Of public war, il must be
thing which can never exist without the actual con-
currencs Of the icar-making potrer. This on the
part Of the United States, is Congress the part
Of England, the Queen. A state Of peace and the
Of justice ill the contrary be shown and this is a
Presumpio juris q dc jure, until the national power
Of the country in which such sit, officially de-
clarcs the contrary"
Now the entire error in the opinion Of the
Judge arises from the erroneous principle of in
ternational law which he here lays down
All will agree that the war which affords i'm
punity to those engaged in il, must be lawful
war. But by the term lawful war is not meant
a 'soIemn and formal war; only on the con-
trary, il comprehends every description of war,
except hostile expeditions set on foot for purpo-
SEES OF plumber and pillage, without any apparent
cause.
Rutherforth says: "If nation seizes the goods
Of another nation by force, upon account Of some da
mage, &c, such contentious by foice are reprisds.
There may be likewise other acts Of hostility between
two nations, which do not properly come under the
name Of repisals such the besieging each others
towns the sinking of each others fleets whilst the
nations ~ other respects are at peace ioiM
tier. These public ,ca, because nations are the
contending parties But they are confined to some
particular object they are Of the imperfect s.rt" &C.
b. ii. 3, $. 10.
In opposition to this authority, il will be seen
that Judge CowEN starts with the proposition
that, 50 long as the entire peace Of the two ma
ions Is not broken up--ln other words, until
Congress shall declare war against England, or
the Queen of England against us, there cannot
be q state OF war that will warrant the destruc-
ton OF property, or the taking Of life in conflict,
on either side. To controvert this proposition
we bring not only Rutherforth, as above cited
but Vattel, in language if possible still more exr
P''Nis. - eest -, ~ yoS.
"a war law full and in form, is carefully TO be dis
hnguishod from an unlawful entered on without
any form, or rather from those ineursions nhich
committed siter aottout iatei authority apparent
cause ikeiose iottout ormaities and only for ha
roc and pdge. GTotius, b. iii, chap 8 relates
raj instances ofthe latter Such the Of the
Grdndes Campagnies, which had assembled in France
during the wars with the English armies OF bandt
which ranged about Europe purely for spoil and plan
der. Such were the cruises of Filbustiers, without
commission and in time of peace; aud such in gene
raj are the depredations Of pirates To the class
belong almost all the expeditions Of the African cor
sairs, though authorized by a sovereign they being
founded on no apparent just cause and ,chose only
motire is the dpdity Of captures. l say these f,oo
sorts of wars ioetui and aniairfni TO be careful
~ distinguished; their elects and the rights arising
from them being very different"
Here we have Vattel, distinguishing all the
hostile collisions Of nations into stpo sorts Of
apparent cause" and for "hdr0c and piHoge,n
and all that do not come under this head being
of the other sort. Having thus divided wars
into 1.-TWO sorts, the one he calls unidptuL war,
the other LAWFUL war.
Vattel does not, like Judge CowEN, call all
wars unlawful that are not formally and solemn
ly declared by the war-making power of a
but he pronounces all hostile at
lacks lawful wars, if made with lawful author
ity. and for apparent cause" and not for 'pii-
tage and hdp0c."
Chancellor Kent, too, admits that formal de-
claration OF war is not essential 10 make the war
iaaefM All that is required to make lawful
war is, that the hostilities be authorized by the
proper authorities Kent. Com. 81.
"Since the time Of Brnkershoock il has become
settled by the practice of Europe that may law
fully exist by declaration which Is unlatera only
icihouf a declaration either side. may begin
1oh mutual hosfiiifies. In the between England
and France, IN ITS the first public act on the part Of
England was recalling Ii Minister, and that single
act considered by France breach of the peace
between the two countries. There other de-
caration Of war, though each Government afterwards
published manifesto in vindication of its claims and
conduct The same thing may be said of the
which broke out in 1893, and again in lsO3 and in
deed in the war Of 1856. Though solemn and for
NAL declaration of war, in the ancient style made
in June, 1885, various hostities had been carried on
for year preceding
In the same explicit manner Rutherforth
speaks, denying the necessity of declaration of
war to make the war lawful:
"The only real effect Of declaration Of war is,
that il makes the war general one, or of one
whole nation against another whole nation whilst the
imperfect SORTS Of ,edr, such relysas, acts of
hostility are confined to particular persons or things,
or places" Ruth. b. 2, oh. 9, sec 8.
Thus, it will be perceived, lawful war may
be commenced without any formal declaration,
and il may be manifested by an act of hostility,
without any previous notice; and whether the
war becomes general one or an imperfect pdr,
depends upon the extent to which hoslilites are
carikd. Il will always be lawfa aoar, if the
hostilities authorized by the proper authority,
and are not mere wanton depredatons, without
any apparent cause
These questions do not depend entirely upon
the opinions Of elementary writers upon nation
al law. They have been illustrated by judicial
decisions in cases of hostilities upon the ocean.
II Dodson's Admiralty Reports, PAT.
A declaration of war was issued by Sweden
against Great Britain, on account of the en-
croachments of the latter upon her rights as