PART III. THE LAW OF WAR. CHAPTER I. THE DEFINITION OF WAR AND OTHER PRELIMINARY POINTS. The nature and definition of war. $155. WAR may be defined as A contest carried on by public force between states, or between states and communities having with regard to the contest the rights of states. Some of the earlier authorities regarded war as a condition. Grotius, for instance, defines it as Status per vim certantium, qua tales sunt,1 which Whewell translates as "the state of those contending by force, as such." But we speak of states as being belligerent, and thus indicate their condition, while we reserve the word "War" for the series of hostile acts which take place during belligerency. War is a contest, not a condition; and moreover it is restricted to contests carried on under state authority directly or indirectly given. Private war has long ago disappeared from civilized societies. If individuals now attempt to redress their real or fancied wrongs by the might of their own hands, they are regarded by the law as disturbers of the public peace, 1 De Jure Belli ac Pacis, I., I., II. and their act is an offence in itself, however gross may have been the injury which brought it about. It sometimes happens that a commander at a distance from his own country and without means of communicating immediately with his Government deems such a serious emergency to have arisen. as will necessitate hostile acts on his part against the local rulers and their subjects. If his proceedings are adopted and ratified by his Government, they are state acts from the first, and constitute a regular war: if they are disavowed, they are acts of unauthorized violence for which reparation must be given. A war such as was waged in the autumn of 1893 by the armed forces of the British South African Company against Lobengula, King of the Matabele, and his tribe, is indirectly a state act, inasmuch as it is carried on by a chartered corporation under authority granted by the state. Whatever may be thought of the policy of allowing private associations to exercise many of the powers and prerogatives of sovereignty in their dealings with barbarous races, it is clear that the international responsibility for their wars belongs to the state which has delegated to them so many of its functions. Their force is its force; their wars are its wars; and their political arrangements are its political arrangements. All war is now public war. Even the military and naval operations of revolted provinces or colonies have a public character impressed upon them by the process known as Recognition of Belligerency ; so that the dictum of Grotius that civil war is public on the part of the government and private on the part of the rebels 2 is no longer applicable. The other distinctions between different kinds of war are either unmeaning or obsolete. A formal war was one carried on by public authority and declared with due formality, whereas an informal war wanted both these characteristics. But we have just seen that all modern wars are waged by the authority of the sovereign power in 1 See §§ 162, 163. 2 De Jure Belli ac Pacis, I., III., I. the state, and we shall soon see that no formal declarations of war are now required. In a perfect war the whole state was placed in the legal condition of belligerency, and in this sense of the term all wars are now perfect. An imperfect war was limited as to persons, places and things; and all wars are now limited to combatants so far as active hostile operations are concerned, and must of necessity be limited as to places and things since no power can cover the whole of the possible area of hostilities with its armed forces. Again, war was said to be offensive on the part of the aggressor in the struggle, and defensive on the part of those on whom the quarrel was fastened; and a distinction of the same kind was signified by the contrast between just and unjust wars, when it was not meant to convey the ideas set forth by the terms "formal" and "informal." But modern International Law knows nothing of these moral questions. It does not pronounce upon them: it simply ignores them. To it war, whether just or unjust, right or wrong, is a fact which alters in a great variety of ways the relations of the parties concerned. It must, therefore, be defined and its legal incidents set forth. Law will tell us how the relation of belligerency is created, and what are the rights and obligations of belligerents towards each other and towards neutrals; but we look to ethical discussions for guidance upon the moral questions which occupy such a large space in the writings of the early publicists. Grotius, for instance, endeavors to classify the just causes of war, after having decided that war is not necessarily wrong, mainly by the process of confusing it with capital punishment. Such questions as these are worthy of the most careful consideration; but they are as much out of place in a treatise on International Law as would be a discussion on the ethics of marriage in a book upon the law of personal status. 1 Halleck, International Law, Ch. XVI. 2 De Jure Belli ac Pacis, I., II., and II., I., XX.-XXVI. § 156. Modes of putting stress upon a state by violence which is not held to amount to War must be distinguished from certain methods of applying force which are held not to be inconsistent with the continuance of peaceful relations between the powers concerned, though the distinction is found in the intent of the parties rather than in the character of the acts performed. In so open war. far as the power against which these latter are directed is concerned, they are exactly the same as would be resorted to in the case of warlike operations. But the parties to them do not choose to regard themselves as belligerents, and do not claim to subject other states to the burdens and disabilities of neutrals. The diplomatists on both sides continue their work, non-combatants are not obliged to suspend commercial intercourse at places outside the area of the forceful proceedings, and the legal concomitants of a state of peace continue to exist. The modes of putting stress upon an offending state which are of a forceful and violent nature, though they are said to fall short of actual war, may be classified under the heads of Reprisals, Embargo and Pacific Blockade. § 157. We will first deal with Reprisals. Reprisals. The term is used in a bewildering variety of senses. Sometimes it means nothing more than a resort to the lex talionis in warfare. A commander who shoots the mayor of an occupied town in retaliation. for the murder of his sentinels by the inhabitants resorts to an act of reprisal; but it is an incident of warfare, not an attempt to bring an offending state to terms by an exercise of force which does not amount to war. Again, we sometimes read of Negative Reprisals or Retortion; but these are carried on by adopting towards a state which is acting in an unfriendly, though peaceful, manner a similar line of conduct to that complained of in it. They take place, for instance, when differential duties are levied by one state upon the products of another which has discriminated against the former in its tariff; and it is quite clear that they have no connection with force or war. The older publicists make mention of yet another form of Reprisal. They describe as Special Reprisals a method frequently resorted to in the Middle Ages, and sometimes in later periods, for the indemnification of private individuals for injuries and losses inflicted by subjects of other nations. Letters of Marque were issued by the sovereign to those who had been wronged, and they were thereby authorized to recoup themselves by capturing vessels and cargoes of the offending nationality. With the rise of modern notions of state responsibility and the increase of the power of governments these Special Reprisals have fallen into disuse. The wronged individual would now be told by the rulers of his country that they would endeavor to obtain redress for him from the rulers of the country to which the offender belonged. A diplomatic correspondence would ensue, and, if the complaint was well founded, redress would in all probability be given. But the transaction would be one between the states concerned, and the individuals with regard to whom the case arose would do no more than communicate each with his own Government. The only kind of Reprisals of a forceful character known to modern International Law is what used to be called by way of distinction General Reprisals. They take place when a state which deems itself aggrieved sends its public armed forces to seize and destroy property belonging to the offending state or its subjects in the territory of the latter state, in its waters or on the high seas. One of the most recent instances is afforded by the hostile acts of France against China in 1884 and 1885. The French Government felt aggrieved by the constant presence of bands of |