CHAPTER VII.

GENERAL QUESTIONS AS TO WAR.-ARMED FORCES OF THE STATE.-MARITIME WARFARE.

Definition of war.-War can be defined as a contest, existing or declared, between two or more nations or belligerents through their armed forces for the purpose of securing the submission of one side to the wishes of the other. Properly speaking, a contest between a state and a party of individuals, or acts of armed forces performed by one state against another by way of reprisals or intervention, are not acts of war unless resisted in a similar manner or met by a declaration that such acts are considered by the offended state as acts of war.

General questions as to war.-"The independent societies of men, called states," says Wheaton, " acknowledge no common arbiter or judge, except such as are constituted by special compact. The laws by which they are governed is deficient in those positive sanctions which are annexed to the municipal code of each distinct society. Every state has therefore a right to resort to force, as the only means of redress for injuries inflicted upon it by others, in the same manner as individuals would be entitled to that remedy were they not subject to the laws of civil society. Each state is also entitled to judge for itself what are the nature and extent of the injuries which will justify such a means of redress."

1

"The right of making war, as well of authorizing reprisals or other acts of vindictive retaliation, belongs, in every civilized nation, to the supreme power of the state. The exercise

1 Wheaton.

of the right is regulated by the fundamental laws or municipal constitution in each country, and may be delegated to its inferior authorities in remote possessions, or even to a commercial corporation," such, for example, as the British East India Company of times past, or the British South African Company of the present time, exercising as they do and did, to an extent certain sovereign rights with respect to foreign states or savage communities.

The war-making power.-But with respect to the United States no such rights can be delegated. The exercise of the war-making power is vested in Congress alone, and the President has no constitutional right or authority to order aggressive hostilities to be undertaken.

As Secretary Cass said to Lord Napier in 1857, in regard to a combined expedition into China, "Our naval officers have the right-it is their duty, indeed-to employ the forces under their command not only in self-defense but for the protection of our citizens when exposed to acts of lawless outrage, and this they have done, both in China and elsewhere, and will do again when necessary, but military expeditions into the Chinese territory cannot be undertaken without the authority of the national legislature." The Boxer expeditions of 1900 were not considered as a violation of this policy. The condition of Peking was regarded as one of virtual anarchy, requiring action for the rescue and protection of American officials, citizens and property. At the same time the policy was announced as one of a preservation of Chinese territorial and administrative entity."

Effect of war upon states and individuals.—The effect of war upon the relations of all states is to change them radically. The contending parties become what are known as belliger

2 Wheaton.

2a Circular of the United States, July 3, 1900.

ents; the other states become neutrals. New rights and new obligations arise and no state can, strictly speaking, be said to play an entirely passive or disinterested part.

As to the individuals of each belligerent state there also arises a change of relations whether they are directly involved in the military contest or not. A new theory has been advanced of late years as to individual relations during war between the subjects of belligerent states.

The old theory was that all citizens of one belligerent state were enemies of all citizens or subjects of the other. The new theory is that war is a contest between state and state, and that private citizens of the belligerent countries should not be molested either as to persons or property. The practice and usage do not conform to either theory.

Private individuals, for instance, cannot hold pacific intercourse with the enemy; it is treason for them to give the enemy military intelligence, they must not buy the funds nor securities of the enemy, commercial partnerships with the enemy's subjects are dissolved by war, no debts can be paid. to enemy's subjects during war, contracts cannot be enforced, insurance of enemy's property cannot be effected, and, in fact, all business relations are suspended.

In a military sense also war cannot be relegated to a duel of forces. A general uprising of the inhabitants of an invaded country cannot be prohibited. Requisitions and contributions can still be raised upon the non-combatants on the enemy's soil, and at sea private enemy property is still subject to capture by the rules of international law. On land, devastation, by which is meant a destruction of private resources available for enemy supplies, is permissible under certain circumstances.

Effect of war upon treaties.-Treaties existing between belligerents alone are in general abrogated or suspended during

war.

The principal exceptions are treaties regulating the

conduct of belligerents towards each other in case of war. In these cases, naturally such treaties, suspended during peace, are brought into operation by war.

Treaties to which other powers besides the belligerents are parties, when the war is not connected with the treaty, remain unchanged. Ordinary treaties are generally suspended or abrogated with regard to belligerents, but unaffected with regard to the third parties. Such general agreements like the declarations of Paris and St. Petersburg go into effect with war so far as the signatory powers are concerned.

There is a class of treaties, of a permanent nature, duly fulfilled, which as between belligerents are held to be unaffected. They are of the nature of boundary treaties, treaties of cession and treaties of recognition. They remain unchanged during the war, no matter if they are changed at its termination. The boundaries of two belligerent states may be changed at the end of a war as a consequence of the war, but during its continuance the old boundaries remain until the conquest is completed and the readjustment effected by treaty.

Quasi-war.-A limited or quasi-war may also exist like that between France and the United States in 1798 in the West Indies. The hostilities at that time were limited as to places, persons and things.

Duties in case of war on part of naval officers.-The Naval Regulations of the United States require of commanders-in-chief and of those in command that "When the United States is at war he shall require all under his command to observe the rules of humane warfare and the principles of international law. When dealing with neutrals, he shall cause all under his command to observe the rules of international law and the stipulations of treaties, and expect and exact a like observance from others." 3

Art. 335, Naval Regs., 1909.