CHAPTER XXIV.

WAR AND ITS EFFECTS.

433. WAR is the exercise of force by one State against another, for the purpose of obtaining by coercion what could not be obtained by peaceful means.

"Le droit de la guerre dérive de la necessité et du juste rigide. Si ceux qui dirigent la conscience ou les conseils des Princes ne se tiennent pas là, tout est perdu; et lorsqu'on se fondera sur des principes arbitraires, de gloire, de bienfaisance, d'utilité, des flots de sang monderont la terre."

434. War is defensive on the part of the State which only wishes to defend its rights, and offensive on the part of the State which intends to violate the rights of another.

435. The right to make war vests in the executive power of the State, with such limitations as the constitution may prescribe.

In the United Kingdom the right of making war and peace is vested exclusively in the Crown. The Crown, which declares general hostilities, can limit their operations; it can except individuals, grant particular passes, and exempt particular classes of the enemy's ships.

436. When a civil war assumes the character of a public war, and induces conditions affecting other countries, equal to those produced by public war, States thereby affected may find it necessary to accord to the contending parties belligerent rights.

The United States did not declare war against the Confederated States because they refused to recognize in the same any body politic as opposed to them, or capable of performing any functions of hostility, but claimed to disregard the insurrection as a rebellion of individuals risen to the dimensions of a war. They did in practice treat the rebels as belligerents, holding them as prisoners of war, making use of exchanges and other practices of war; but this was from necessity, to prevent retaliation, and from humanity. But they refused to recognize any authority in the Confederated States capable of even making a surrender, and neither the existence nor the disappearance of the Confederacy was noticed legally by the United States (Dana).

437. The presumed object of war being to cripple the enemy's commerce and to capture his property, a state of war implies a prohibition of commercial intercourse and correspondence with the inhabitants of the enemy's country. Therefore all such intercourse without the licence of the Crown is illegal.

Exposito v. Bowden, Exch. Ch., 7 E. and B. 763.

438. When a State declares war against another State, it is the same as if the entire nation should declare war against the other nation, and therefore all the subjects of the one become enemies to all the subjects of the other.

The principle is that every person belonging to a nation with whom a State is at war is an enemy; that war is declared not only against the Sovereign, but against every subject, women and children included. But surely this principle is untrue in actual practice. Women and children, the old and the sick, physicians and surgeons, who do not take arms, are not enemies. No modern nation make all the inhabitants of the enemy's country prisoners of war. War is now rather a duel between the military and naval forces of the

States at war. Political interests may be at issue, but there need not be personal enmity.

439. A formal declaration of war is not necessary, but, when all efforts to prevent war are ended, the practice is to issue a manifesto within the territory of the State, announcing the commencement of hostilities and the motive for resorting to the same, which manifesto is communicated to all friendly Powers, and has the same effect as a declaration.

440. A declaration of war is an act of State done by virtue of the prerogative exclusively belonging to the Crown, and carries with it all the force of law.

441. War exists de facto as well as de jure after a declaration of hostilities has been duly made.

The Romans considered a formal declaration of war necessary to legalize hostilities between nations. A declaration of war continued to be made till the end of the seventeenth century. In 1635 a declaration of war by France against Spain was made by heralds-at-arms.

442. Knowledge of the existence of war is presumed to exist so as to affect even ships at sea, as soon as such public manifesto and accompanying orders, warnings, etc., have been issued.

443. The territory of the enemy includes all the place or region which is under his actual control, and of which he has firm possession, without reference to the political or legal relations of the territory to the general government, or to what Sovereign the territory which the enemy is holding belongs in time of peace.

"The Alexander," 7 Cranch, 169–179.

444. The national character of those living in the territory being determined by domicile, all persons residing and domiciled in the enemy's country are held as enemies, and subject to all the disabilities which affect the State.

445. The character of enemy does not attach to one whose residence in the place is of a mere temporary nature, or to one who resides there for diplomatic purposes.

446. The person and property of alien enemies or subjects of the country at war within the State are protected.

In England Magna Charta provided that merchants belonging to the country of the enemy, found in England at the breaking out of a war, should be attached, without harm of body or goods, until the