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CHAPTER XXIII.

WAR.

I. DEFINITIONS. § 1100.

II. KINDS.

1. Public and general. § 1101.

2. Limited. § 1102.

3. Civil. § 1103.

4. Private (no longer admissible). § 1104.

III. POWER TO MAKE. § 1105.

IV. COMMENCEMENT OF WAR.

1. Declaration. § 1106.

2. Hostilities prior to declaration. § 1107.
3. Civil war. § 1108.

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6. Treatment of resident alien enemies. § 1116.

7. Prohibition of exports. § 1117.

8. Protection of neutral persons and property. § 1118.

9. Prohibited measures.

(1) Particular acts. § 1119.

(2) Bombardment of undefended towns.
(3) Pillage. § 1121.

§ 1120.

(4) Denial of quarter. § 1122.

(5) Wanton destruction. § 1123.

(6) Prohibited implements. § 1124.

(7) Uncivilized warfare. § 1125.

Case of Arbuthnot and Ambrister.
§ 1126.

10. Question as to concentration.

VII. PRISONERS OF WAR.

1. Who are and who are not. § 1127.

2. Treatment. § 1128.

3. Exchange. § 1129.

4. Parole. § 1130.

5. Repatriation. § 1131.

6. Spies, war traitors, war rebels. § 1132.

7. Deserters. § 1133.

VIII. TREATMENT OF THE WOUNDED. § 1134.
Geneva (Red Cross) convention, 1864.

IX. INTERRUPTION OF COMMERCIAL RELATIONS. 1. Suspension of intercourse. § 1135.

2. Contracts.

(1) Limitations on power to contract. § 1136.

(2) Suspension or dissolution of contracts. § 1137
(3) Cessation of interest. § 1138.

3. Judicial remedies.

(1) Suspension and revival. § 1139.

(2) Suspension of statute of limitations. § 1140.

4. Licenses. § 1141.

5. Interference with means of communication. § 1142. X. MILITARY OCCUPATION.

1. Occupied territory and its administration.

2. Civil War cases. § 1144.

3. Regulation of commerce. § 1145.

4. Treatment of the inhabitants. § 1146.

5. Martial law. § 1147.

6. Law as to public property. § 1148.

7. Law as to private property.

§ 1143.

(1) Taxes; contributions; requisitions. § 1149.
(2) Confiscation. § 1150.

(3) Confiscation acts, 1861, 1862. § 1151.

(4) Abandoned and captured property act. § 1152.

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Much confusion may be avoided by bearing in mind the fact that by the term war is meant not the mere employment of force, but the existence of the legal condition of things in which rights are or may be prosecuted by force. Thus, if two nations declare war one against the other, war exists, though no force whatever may as yet have been employed. On the other hand, force may be employed by one nation against another, as in the case of reprisals, and yet no state of war may arise. In such a case there may be said to be an act of war, but no state of war. The distinction is of the first impor

tance, since, from the moment when a state of war supervenes third parties become subject to the performance of the duties of neutrality as well as to all the inconveniences that result from the exercise of belligerent rights. One of the most remarkable illustrations of the distinction here pointed out was the condition of things in China in 1900, when the armed forces of the allies marched to Peking and occupied parts of the country without any resultant state of war.

"Cicero says that war is a contest or contention carried on by force. But usage applies the term, not only to an action [a contest], but to a state or condition: and thus we may say, war is the state of persons contending by force, as such. Hence we do not exclude private wars, which preceded public wars, and have the same origin as those. The common use of the word war allows us to include private war, though, used generally, it often means specifically public war. We do not say that war is a state of just contention, because precisely the point to be examined is, whether there be just war, and what war is just."

Grotius, Book I., chap. 1, § 2.

Bynkershoek accepts Grotius's view that war is a state or condition of things rather than an action or contest, but suggests as a more comprehensive definition than that of Grotius: "War is a contest between independent parties by way of force or deceit, for the purpose of pursuing their right." By this definition, as he points out, he excludes the idea of private war, except, perhaps, as to individuals who acknowledge no political superior. (Book I., chap. 1.) Vattel defines war as the state of things in which a nation prosecutes its right by force. (Book III., chap. 1, § 1.)

For other definitions of war, see Twiss, Law of Nations in Time of War, § 26, p. 49; Martens, Law of Nations, Book VIII., chap. 2, § 1; Heffter, § 113; Buntschli (by Lardy), art. 510; Phillimore, Int. Law, III., § 49; Calvo, Droit International, (5th ed.) IV. 15.

"20. Public war is a state of armed hostility between sovereign nations or governments. It is a law and requisite of civilized existence that men live in political, continuous societies, forming organized units, called states or nations, whose constituents bear, enjoy, and suffer, advance and retrograde together, in peace and in war."

Instructions for the Government of Armies of the United States in the
Field, General Orders, No. 100, April 24, 1863, War of the Rebellion,
Official Records, series 3, III. 150.

II. KINDS.

1. PUBLIC AND GENERAL.

§ 1101.

Wheaton and other writers speak of "perfect" and "imperfect" wars, the former being one in which it is said the whole nation is at war with another nation and all the members of each are authorized to commit hostilities against all the members of the other in every case permitted by the laws of war; the latter, a war limited as to places, persons, and things. It may be suggested that it would be more nearly correct to speak of wars in this sense as general and limited. See, for Wheaton's classification of wars as "perfect" and "imperfect," Dana's edition, Part IV. sec. 296, p. 374.

Lawrence, in a note preserved by Dana, classes as an imperfect war “the limited hostilities authorized by the United States against France in 1798," citing 2 Dall. 21; 4 id. 37.

"A perfect war is that which destroys the national peace and tranquillity, and lays the foundation of every possible act of hostility; the imperfect war is that which does not entirely destroy the public tranquillity, but interrupts it only in some particulars, as in the case of reprisals."

Case of the Resolution, Federal Court of Appeals, 1781, 2 Dall. 18, 21.

2. LIMITED.

§ 1102.

See as to French spoliation claims, supra, § 1056.

"And whereas actual hostilities have long been practised on the commerce of the United States by the cruisers of the French Republic under the orders of its Government, which orders that Government refuses to revoke or relax; and hence it has become improper any longer to allow the consul-general, consuls, and vice-consuls of the French Republic above named, or any of its consular persons or agents heretofore admitted in these United States, any longer to exercise their consular functions; these are therefore to declare, that I do no longer recognize the said citizen Letombe as consul-general, or consul, nor the said citizens Rosier and Arcambal as vice-consuls, nor the said citizen Mozard as consul of the French Republic in any part of these United States, nor permit them or any other consular persons or agents of the French Republic, heretofore admitted in the United States, to exercise their functions as such; and I do hereby wholly revoke the exequaturs heretofore given to them respectively, and do declare them absolutely null and void, from this day forward.”

Proclamation of July 13, 1798, 9 John Adams's Works, 170, 171.

Captain Tingy, of the U. S. S. Ganges, libeled for salvage the American ship Eliza, which he recaptured March 31, 1799, from a French privateer, after she had been for more than ninety-six hours in the privateer's possession. An allowance was made of one-half the value of the ship and cargo. The propriety of this allowance depended on the application of certain acts of Congress. By an act of June 28, 1798, an allowance of one-eighth was made to a public armed vessel that "recaptured " an American vessel or goods. By an act of March 2, 1799, however, it was provided that if an American ship or goods should be "retaken from the enemy," an allowance of a half should be made, if the retaking occurred above ninety-six hours after the taking; and it was by the same act further provided that all money accruing or accrued " from the sale of prizes" should be a fund for the payment of the half pay of officers and seamen. The propriety of the allowance in the case of the Eliza, therefore, depended (1) on whether the act of March 2, 1799, applied only to the event of a future general war, and (2) on whether France was an "enemy" of the United States within the meaning of the law. The judges of the Supreme Court delivered their opinions seriatim.

Moore, J., said that the act of 1799 obviously applied to the present situation with respect to France. How could that situation be otherwise described than as hostility or war, or the parties engaged in it than as enemies? By this description alone could they justify "the scene of bloodshed, depredation and confiscation, which has unhappily occurred."

Washington, J., said that "every contention by force between two nations, in external matters, under the authority of their respective governments, is not only war, but public war." It might be It might be a solemn and general, or perfect, war, or, "being limited as to places, persons, and things," might be called an imperfect war. Still, it was a public war, and the parties to the hostilities authorized by the acts of Congress were enemies. Congress had "raised an army; stopped all intercourse with France; dissolved our treaty; built and equipt ships of war; and commissioned private armed ships; enjoining the former, and authorizing the latter, to defend themselves against the armed ships of France, to attack them on the high seas, to subdue and take them as prize, and to recapture armed vessels found in their possession." "In fact and in law we are at war; an American vessel fighting with a French vessel, to subdue and make her prize, is fighting with an enemy accurately and technically speaking: The sixth and ninth sections of the act [of 1799] speak of prizes, which can only be of property taken at sea from an enemy, jure belli; and the 9th section speaks of prizes as taken from an enemy, in so many words."

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