Page:The New International Encyclopædia 1st ed. v. 20.djvu/335

WAR. 279 WAR. fundamental essential, that war is a public and ytiite act as distinfiiiislicil I'rom tliu ;iils of private individuals. The Supreme Court of the United States, in an oft -quoted .sentence, laid down the following definition : "Every contention by force between two nations in e.xtcriial mat- ters, under the autliority of their respective governments, is not only war, but public war." {lias rx. Tiiigy, 4 Dallas .37.) A moic clabcjrate definition, in the nature of a description, is found in the following: "It is a contest," says iiynl<eis- hoek, "carried on between independent per- sons for the sake of asserting their riglits." Where society does not exist — where there is no such institution as that which we call govern- ment — these individuals, being strictly independ- ent persons, may carry on war against each other. But whenever men are formed into a so- cial body, war cannot exist lietwcpn iiuiiviilu- als. The use of force among them is not war, but a trespass, cognizaljle Ijy the municipal law. If war, then, to be the act of a nation, whatever is done in the prosecution of it, must either expressly or implicitly be under the national authority, whatever private benefits result from it must be from a national grant. "War," says Vattel, "is that state in which a nation prosecutes its right by force." The right of making war belongs to the sovereign power. In- dividuals cannot control operations of war, nor ■commit any hostility (except in self-defense), without the sovereign's order. "The generals," adds that writer, "the oflicers, the soldiers, the partisans, and those who fit out private ships of war, having all commissions from the sovereign, make war by virtue of a particular order. And the necessity of a particular order is so thor- oughly established, that even after a declaration of war between two naticms, if the peasants them- selves commit any hoitilities, the enemy, instead of sparing them, hangs thera up as so many rob- bers or banditti." (United States vfs. The "Ac- tive," 24 Fed. Cas. 755.) These statements ap- ply to hostilities between sovereign and inde- pendent nations, but they fail to include armed contention between different parts of the same nation as in the case of the Civil War in the United States. A third decision, arising out of the circumstances of the Civil War, will supple- ment and complete the fundamental conception of war. "That they (the Confederates) were liable to be regarded as 'enemies' is undoubtedly true. This implies the existence of 'war.' But every forcible contest between two governments, de facto or de jure, is war. War is an existing fact and not a legislative decree. Congress alone may have power to 'declare' it beforehand, and thus cause or commence it. But it may be initiated by other nations, or by traitors, and then it exists, whether there is a declaration of it or not. It may be prosecuted without any declaration; or Congress may, as in the Mexi- can War, declare its previous existence. In •either case it is the fact that makes 'enemies,' and not any legislative act." (Dole vs. Merchants' Mutual Ma)-ine Ins. Co.. 51 Maine, 4(15.) A mere insurrection, however, is not war; to entitle the armed forces to the rights and privileges of bel- ligerents it would seem that thoy should pos- sess at least the power to make the issue doubt- ful, and that the Government which they serve must be org.anized so as to be in a position to meet the duties neee.s.sarily resting upon Ijellig- erents, namely to maintain law and order williin the regions subjected to their control, and to carry on war on a large scale on land or sea. If these elements are absent, the uprising is treated as a rebellion, and rebels as such have no rights. The ))arties to a civil war, such as the Civil War in the United States, have equal claim to the protection accorded by the modern law of war. I'ul>licists have divided wars into formal and informal; perfect and imperfect; offensive and defensive; national and civil: but these classifica- tions are practically worthless. War is a fact; its existence is proved as a fact, and it is noth- ing more than the contention on land or sea of armed liodies acting under orders from and commissioned by a de jure or de facto sover- eign, and both parties to the contest, whether ecpial or unequal in size, legally or illegally exist- ing, eiijny equal rights. Kxamples of this are the ('ivil War. the South African War, and more hitely the slate of atlairs in the Philippines after their cession to the United States. It is likewise immaterial whether the war be- gins formally with a declaration, or informally by an act of hostility. It is necessary, however, to fix the exact date of the outbreak; for the ef- fect of war when once existing is wide-reaching both as regards the belligerents and neutral na- tions. A nation may formally declare war, as in the ease of the ultimatum served upon the Brit- ish Government by the Transvaal in IStHt: the nations may drift into war, as was the ease with China and .Japan in 1S94; or the date of the war may be fixed by act or proclamation subse- quent to the outbreak of hostilities, as was done by the act of Congress of April 25, 1898, which declared war to have existed "since th(! twenty- first da}' of April. Anno Domini eighteen hun- dred and ninety-eight, including said day, be- tween the United States of America and the Kingdom of Spain." As with kinds, so with causes of war. Pub- licists have amused themselves with divisions into permissible and non-permissible, just and unjust wars, and have classified the various causes as just and unjust. But this, however in- teresting in itself, is not helpful. A sovereign nation has no superior, and therefore admits of no judge as to the justice or iniquity of the war into which it plunges. When nations are inflamed by real or imaginary violations of their rights, as in the case of the Mexican War, justice is large- ly an afterthought. .Patriotism, too often jingo- ism, appears to control. The most that may be said is that when a nation's demand, just or un- just, is met by a denial, it is for the nation to de- cide whether it will attempt to force by arms the rejected demand. The question of responsibility is moral rather than a question of international law. War is not an end in itself; it is a means to an end, namely peace. The Instructions for the Gorcrnment of Armies of the T'nited l^lates in the Field (prepared by Dr. Lieber in ISfi.*? and reissued in 1898) say in articles 29 and 30: "Peace is their (nations') normal condition: war is the exception. The ultimate object of all mod- ern war is a renewed state of peace. The more