PART II. WAR. ITS CAUSES, USAGES AND EFFECTS. tion. War is an interruption of the usual and natural peaceful rela- Sec. 1. Definitions existing between States. It is an "interruption of the state of peace for the purpose of attempting to procure good or prevent evil by force; and a just war is an attempt to obtain justice or prevent injustice by force, or, in other words, to bring back an injuring party to a right state of mind and conduct by the infliction of deserved evil."* "War is that state in which we prosecute our right by force."+ "It is one of the highest trials of right; for, as princes and States acknowledge no superior upon earth, they put themselves upon the justice of God by an appeal to arms." war. "A contest by force between independent sovereign States Sec. 2. Public is called a public war. If it is declared in form, or duly commenced, it entitles both the belligerent parties to all the rights of war against each other. The voluntary or positive law of nations makes no distinction, in this respect, between a just and unjust war. A war in form, or duly commenced, is to be considered as to its effects, as just on both sides. Whatever is permitted by the laws of war to one of the belligerent parties is equally permitted to the other."§ "Wherever men are formed into a social body, war cannot exist between individuals; the use of force between them is not war, but a trespass, cognisable by the municipal law."|| and defensive war. Wars have sometimes been classed as offensive or defensive Sec. 3. Offensive from the nature of their operations. An offensive war is one in which a nation attacks another. A defensive war is one waged Woolsey, Sec. 3. † Vattel, p. 291. § Wheaton, p. 514. Lord Bacon, Vol. III, p. 40. || Bynkershoek, p. 2. Sec. 4. Perfect war. in self-defence.* This distinction cannot be regarded as of much force, since it relates to the form of war rather than to its objects. A war undertaken strictly in defence of national rights may, and frequently does, become an offensive war in its operations, since to attack an enemy is often the surest means of defending oneself. "Offensive wars, however apt to be unjust, have usually some pretext of justice to urge in their favor."+ "A perfect war is one where a whole nation is at war with and imperfect another nation, and all the members of both nations are authorized to commit hostilities against all the members of the other, in every case and under every circumstance permitted by the general laws of war. An imperfect war is limited as to places, persons, and things." The hostilities authorized by the United States against France in 1798 furnish an example of imperfect war. The Act of Congress of July 9th, of that year, authorized the President, without any declaration of war against France, to instruct the commanders of all public armed vessels of the United States to capture any French armed vessels encountered; and vessels so captured were to be condemned as lawful prizes. The same act also authorized fitting out privateers, but they were to cruise against armed vessels only. Sec. 5. Just war. The right of making war belongs to nations only so far as it is necessary for their own defence and the maintenance of their international rights. "The foundation, or cause of every just war is injury either already done or threatened. The justificatory reasons for war show that an injury has been received, or so far threatened as to authorize a prevention of it by arms. If any one attacks a nation, or violates her perfect rights, he does her an injury and affords a just cause of war. "If a nation takes up arms when she has received no injury, nor is threatened with any, she undertakes an unjust war. Those alone to whom an injury is done, or threatened, have a right to make war."§ "A just war, again, is one that is waged in the last resort, when peaceful means have failed to obtain redress, or where self-defence calls for it. We have no right to redress our * Vattel, p. 293; Lawrence's Wheaton, p. 491, n. Woolsey, Sec. 113. Lawrence's Wheaton, p. 518. §Vattel, p. 302. wrongs in a way expensive and violent when other methods would be successful."* 'War is not a game of strength between armies or fleets, nor a competition to kill the most men and sink the most vessels; but a grand, valiant appeal to force to secure an object deemed essential when every other appeal has failed. The purpose of using force is to coerce your enemy to the act of justice assumed to be necessary."† Judge of its own cause. "From the independence of nations it results that each has a Each State the right to hold and make good its own view of right in its affairs. When a quarrel arises between two States, others are not to interfere because their views of the right in the case differ from those of the party concerned; or at least they are not to do this unless the injustice of the war is flagrant and its principles dangerous."‡ In the latter case, however, nations may not only remonstrate with the offender, but may use force to prevent the injustice threatened. "A State bound by treaty to assist another in the event of An ally must judge of the war, must of course judge whether the casus fæderis exists, and justice of the is bound to pass judgment on the nature of the war, since no treaty can sanction injustice."S war. or unlawful war. "No one can be validly engaged to support injustice."|| Vattel calls informal, or unlawful war, predatory expeditions, Sec. 6. Informal such as the cruisers of buccaneers and the depredations committed by the corsairs of the Barbary Coast States; expeditions undertaken, even where authorized by a sovereign, for no other purpose than plunder.¶ war. When a party is formed in a State, who no longer obey the Sec. 7. Civil sovereign, and are possessed of sufficient strength to oppose him, or when, in a republic, the nation is divided into two opposite factions, and both sides take up arms,-this is called a civil war. Custom appropriates the term of 'civil war' to every war between the members of one and the same political society. If it be between part of the citizens on the one side, and the sovereign, with those who continue in obedience to him, † Dana's Wheaton, p. 876, n. Woolsey, Sec. 3. *Woolsey, Sec. 3. Vattel, p. 197; Law ¶Vattel, p. 319. on the other, provided the malcontents have any reason for taking up arms, nothing further is required to entitle such disturbance to the name of civil war and not that of rebellion. Rebellion. This latter term is applied only to such an insurrection against lawful authority as is void of all appearance of justice. The sovereign, indeed, never fails to bestow the appellation of rebels on all such of his subjects as openly resist him; but, when the latter have acquired sufficient strength to give him effectual opposition, and to oblige him to carry on the war against them according to the established rules, he must necessarily submit to the use of the term 'civil war.'"* Mixed wars. "A ċivil war is one in which the opposing parties are distributed over the territory; while a war in which they are localized may be called a rebellion, insurrection, or revolt. A civil war does not aim at the destruction of unity, but rather at some change of government, constitution or laws, while the other may aim at sundering parts before united. With internal wars international law comes into contact so far as the laws of war, that is, of humanity and natural justice, are concerned, and also in the bearings of the war upon the interests and rights of foreign States."+ "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."‡ "In the case where a State attempts to separate itself from the community of which it formed a part, and on which it was dependent, while the parent government seeks to subdue the attempt by the use of force, all the rights of war may be conceded to the insurgents, although no declaration of war has been made and their position as belligerents is not recognized . . . At the commencement of a separation of this kind it is a matter of policy whether the parent portion shall acquiesce in the proposed separation, or attempt to compel continuity by the use of force. If the employment of force is determined upon, it is *Vattel, p. 424. † Woolsey, Sec. 136. Lawrence's Wheaton, p. 521. impossible that war should be declared, because that would be to admit the independence of the insurgents, which is the main point in dispute; and yet it is necessary that war should be held to exist, otherwise the parties at issue are not only deprived of their respective rights, but the interests of third parties are compromised."* eign States Referring to the effects of a civil war on the rights and obli- Conduct of 'forgations of foreign powers, Mr. Dana says, in his notes on during a civil Wheaton's Elements of International Law: If it is "If it is a war, all foreign citizens and officers, whether executive or judicial, are to follow one line of conduct. not a war, they are to follow a totally different line. If it is a war, the commissioned cruisers of both sides may stop, search and capture the foreign merchant vessel, and the vessel must make no resistance, and must submit to adjudication by a prize court. If it is not a war, the cruisers of neither party can stop or search the foreign merchant vessel, and that vessel may resist all attempts in that direction, and the ships of war of the foreign State may attack and capture any cruiser persisting in the attempt. If it is a war, foreign nations must await the adjudication of prize tribunals. If it is not a war, no such tribunal can be opened. If it is a war, the parent State may institute a blockade jure gentium of the insurgent ports, which foreigners must respect; but if it is not a war, foreign nations having large commercial intercourse with a country will not respect a closing of insurgent ports by paper decrees only. If it is a war, the insurgent cruisers are to be treated by foreign citizens and officials, at sea and in port, as lawful belligerents. If it is not a war, those cruisers are pirates, and may be treated as such. If it is a war, the rules and risks respecting carrying contraband, or despatches, or military persons, come into play. If it is not a war, they do not. Within foreign jurisdiction, if it is a war, acts of the insurgents in the way of preparation and equipments for hostility may be breaches of the neutrality laws; while if it is not a war, they do not come into that category, but into the category of piracy or of crimes by municipal law."+ "The habitual obedience of the members of any political society to a superior authority must have once existed in order * Castle, p. 48. † Dana's Wheaton, p. 35, n. war. |