Note 8 — Letter 11.

See Kent’s Commentaries.—“Since the time of Binkershock, it has been settled by the practice of Europe, that war may lawfully exist by a declaration which is unilateral only, or without any declaration on either side.”

In the war between England and France in 1778, the first public act on the part of the English government, was recalling its minister, and that single act was considered by France as the breach of the peace between the two countries. There was no other declaration of war, though each government afterwards published a manifesto in vindication of its claim and conduct. The same things may be said of the war which broke out in 1793, and again in 1803.

The act of withdrawing a minister, is one of a most decisive character, for actual hostilities may exist without a state of war, as in the war of 1756 between France and England, and between us and France in 1798. The act of taking the fort of Mobile under Mr. Madison’s administration in 1812, was an act of hostility, and yet our diplomatic relations still continued—it was made the subject of complaint by Spain, and defended or excused by our government. If diplomatic relations had been discontinued, there would have been no redress for Spain, but in returning the blow. Hence, I contend, that the party which closes these relations, and prevents the peaceful adjustment of injuries, is responsible for all the consequences.