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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
1. PUBLIC AND GENERAL.
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.
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 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."
Chase, J., said that Congress might "declare a general war," or wage a limited war." The contest with France was "a limited, partial, war;" but it was also " a public war, on account of the public authority from which it emanates."
Paterson, J., said that the two countries were "in a qualified state of hostility." It was "a war quoad hoc." It was "a public war between the two nations," qualified in the manner prescribed by Congress, and the term enemy applied to the parties to it. The word enemy "in the act of March 2, 1799, applied to the past, present, and future.
Mr. Justice Chase referred, in the course of his opinion, to Sir William Scott's observation in the case of the Santa Cruz, Rob. Rep. 54, that "in the present state of hostility (if so it may be called) between America and France," it was the practice of the English court of admiralty to restore recaptured American property on payment of salvage. Mr. Justice Chase declared that he could not "perceive the difficulty of the case," since there existed between the two countries a public qualified war."
Bas v. Tingy (1800), 4 Dall. 37.
"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. To determine the real situation of America in regard to France, the acts of Congress are to be inspected.. . One direct and declared object of the war was the protection of the American commerce, And as there existed a state of war, even though, under the acts of Congress, it was a "limited state of hostilities," a ship of war of the United States had a right to capture any vessel sailing under French colors, though express authority for the capture of such a vessel, as distinguished from a French vessel, was given only to private armed vessels. This right was one of the "incidents growing out of those acts of hostility specifically authorized, which a fair construction of the acts will authorize likewise."
Marshall, C. J., in Talbot v. Seeman (1801), 1 Cranch, 1, 28.
In discussing a charge of trading contrary to the nonintercourse act against France of June 13, 1798, Marshall, C. J., used the phrase"Even if an actual and general war had existed between this country and France," etc.
Hallet & Bowne v. Jenks (1805), 3 Cranch, 210.
"I think it is clear, sir, that, whatever misunderstanding existed between the United States and France [from 1798 to 1800], it did not
amount, at any time, to open and public war. It is certain that the amicable relations of the two countries were much disturbed; it is certain that the United States authorized armed resistance to French captures, and the captures of French vessels of war found hovering on our coast; but it is certain, also, not only that there was no declaration of war, on either side, but that the United States, under all their provocations, never authorized general reprisals on French commerce. At the very moment when the gentleman says war raged between the United States and France, French citizens came into our courts, in their own names claimed restitution for property seized by American cruisers, and obtained decrees of restitution. They claimed as citizens of France, and obtained restitution in our courts as citizens of France. This act [May 28, 1798], it is true, authorized the use of force, under certain circumstances, and for certain objects, against French vessels. But there may be acts of authorized force; there may be assaults; there may be battles; there may be captures of ships and imprisonment of persons, and yet no general war. Cases of this kind may occur under that practice of retorsion which is justified, when adopted for just cause, by the laws and usages of nations, and which all the writers distinguish from general war. the same day in which this act passed, Congress passed another act, entitled 'An act authorizing the President of the United States to saise a provisional army; ' and the first section declared, that the President should be authorized, in the event of a declaration of war against the United States, or of actual invasion of their territory, by a foreign power, or of imminent danger of such invasion,' to cause to be enlisted ten thousand men." Mr. Webster also called attention to the fact that by the act of February 20, 1800, war was still spoken of as a future contingency; and on May 11, 1800, further warlike preparations were stopped.
Mr. Webster's speech on French spoliations, 4 Webster's Works, 163–165.
See, also, Lawrence's Wheaton (1863), 518.
"A civil war between the different members of the same society is what Grotius calls a mixed war; it is, according to him, public on the side of the established government, and private on the part of the people resisting its authority. But the general usage of nations regards such a war as entitling both the contending parties to all the rights of war as against each other, and even as respects neutral nations."