The government class book / Designed for the instruction of youth in the principles of constitutional government and the rights and duties of citizens.

by Andrew W. Young

Chapter LXVI.

Declaration of War; its Effect upon the Person and Property of the Enemy's subjects; Stratagems in War; Privateering.

§1. When a nation has resolved on making war, it is usual to announce the fact by a public declaration. In monarchical governments, the power to declare war, which of course includes the right of determining the question whether it shall be made, is vested in the king. In the United States, this power is, by the constitution, given to the representatives of the people, for reasons elsewhere stated. (Chap. XXXVI, §3.)

§2. It was usual, formerly, to communicate a declaration of war to the enemy. According to modern practice, a formal declaration to the enemy is not required. Any manifesto or paper from an official source, announcing that the country is in a state of war, is considered sufficient. The recalling of a minister has alone been regarded as a hostile act, and followed by war, without any other declaration. But such cases have not been frequent. Under ordinary circumstances, the recall of a minister is not an offensive act.

§3. The government of a state acts for and in behalf of all its citizens; and its acts are binding upon all. Hence, when war is declared, it is not merely a war between the two governments; all the subjects of the government declaring it become enemies to all the subjects of that against which it is declared.

§4. Whether, on the occurrence of a war in any state, the subjects of the enemy found within the state may be detained as prisoners of war, and their movable property confiscated; or whether they are entitled to a reasonable time to retire with their effects, is a question upon which writers of public law are not agreed. Few civilized nations, at the present day, would deny such persons a reasonable time to retire with their property. Of houses and lands, all admit that only the income is subject to confiscation. The privilege spoken of, instead of being left to uncertainty, is now, with great propriety, generally secured by treaty.

§5. When war is declared, all intercourse between the two countries at once ceases. All trade between the citizens, directly or indirectly, is strictly forbidden; and all contracts with the enemy made during the war are void.

§6. Although a state of war makes all the subjects of one nation enemies of all those of the other, they cannot lawfully engage in offensive hostilities without permission of their government. If they have no written commission as evidence of such permission, and if they should be taken by the enemy, they would not be entitled to the usual mild treatment which other prisoners of war receive, but might be treated without mercy as lawless robbers and banditti.

§7. As the object of a just war is to obtain justice, a nation, when it has declared war, has a right to use all necessary means, and no other, for attaining that end. A just war gives the right to take the life of the enemy; but there are limits to this right. If an enemy submits, and lays down his arms, we can not justly take his life. And justice and humanity forbid that women, children, feeble old men, and sick persons, who make no resistance, should be maltreated.

§8. Prisoners of war are not to be treated with cruelty. They may be confined, and even fettered, if there is reason to apprehend that they will rise against their captors, or make their escape. Prisoners of war are detained to prevent their returning to join the enemy, or to obtain from their government a just satisfaction as the price of their liberty. Prisoners may be kept till the end of the war. Then, or at any time during the war, the government may exchange them for its own soldiers taken prisoner by the enemy; or a ransom may be required for their release. It is the duty of the government to procure, at its own expense, the release of its citizens.

§9. Ravaging a country, burning private dwellings, or otherwise wantonly destroying property, is not justifiable, except in cases of absolute necessity. But all fortresses, ramparts, and the like, being appropriated to the purposes of war, may be destroyed.

§10. Stratagems and deceit to obtain advantage of an enemy, are, to some extent, justified by the law of nations; but in general they are dishonorable and wrong.

§11. Spies are sometimes sent among an enemy, to discover the state of his affairs, to pry into his designs, and carry back information. This is a dishonorable office; spies, if detected, are condemned to death.

§12. The rights of a nation in war at sea are essentially different from those in war upon land. The object of a maritime war is to destroy the commerce and navigation of the enemy, with a view of weakening his naval power. To this end, the capture or destruction of private property is necessary, and is justified by the law of nations. Hence, for the purpose of attack as well as defense, every nation of considerable power or commercial importance, keeps a navy, consisting of a number of war vessels, ready for service.

§13. Besides these national ships of war, there are armed vessels owned by private citizens, and called privateers. Their owners receive from the government a commission to go on the seas, and to capture any vessel of the enemy, whether it is owned by the government or by private citizens, or whether it is armed or not. And to encourage privateering, the government allows the owner and crew of a privateer to keep the property captured as their own.

§14. To prevent the abuse of this right, the owners are required to give security, that the cruise shall be conducted according to instructions and the usages of war; that the rights of neutral nations shall not be violated; and that the captured property shall be brought in for adjudication.

§15. When a prize is brought into a port, the captors make a writing, called libel, stating the facts of the capture, and praying that the property may be condemned; and this paper is filed in the proper court. If it shall be made to appear that the property was taken from the enemy, the court condemns the property as prize, which is then sold, and the proceeds are distributed among the captors.

§16. All prizes, whether taken by a public or private armed vessel, primarily belong to the sovereign; and no person has any interest in a prize, except what he receives from the state: and due proof must in all cases be made before the proper court, that the seizure was lawfully made. In this country, prizes are proved and condemned in a district court of the United States, which, when sitting that purpose, is called a prize court.