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Chase, J., said that Congress might "declare a general war," or wage a limited war." The contest with France was a limited, partial, war;" but it was also " a public war, on account of the public authority from which it emanates."

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Paterson, J., said that the two countries were "in a qualified state of hostility." It was "a war quoad hoc." It was "a public war between the two nations," qualified in the manner prescribed by Congress, and the term enemy applied to the parties to it. The word "enemy" in the act of March 2, 1799, applied to the past, present, and future.

Mr. Justice Chase referred, in the course of his opinion, to Sir William Scott's observation in the case of the Santa Cruz, Rob. Rep. 54, that in the present state of hostility (if so it may be called) between America and France," it was the practice of the English court of admiralty to restore recaptured American property on payment of salvage. Mr. Justice Chase declared that he could not "perceive the difficulty of the case," since there existed between the two countries "a public qualified war."

Bas v. Tingy (1800), 4 Dall. 37.

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"Congress may authorize general hostilities, in which case the general laws of war apply to our situation; or partial hostilities, in which case the laws of war, so far as they actually apply to our situation, must be noticed. To determine the real situation of America in regard to France, the acts of Congress are to be inspected. . . . One direct and declared object of the war was the protection of the American commerce, And as there existed a state of war, even though, under the acts of Congress, it was a limited state of hostilities," a ship of war of the United States had a right to capture any vessel sailing under French colors, though express authority for the capture of such a vessel, as distinguished from a French vessel, was given only to private armed vessels. This right was one of the "incidents growing out of those acts of hostility specifically authorized, which a fair construction of the acts will authorize likewise."

Marshall, C. J., in Talbot r. Seeman (1801), 1 Cranch, 1, 28.

In discussing a charge of trading contrary to the nonintercourse act against France of June 13, 1798, Marshall, C. J., used the phraseEven if an actual and 'general war had existed between this country and France," etc.

Hallet & Bowne r. Jenks (1805), 3 Cranch, 210.

"I think it is clear, sir, that, whatever misunderstanding existed between the United States and France [from 1798 to 1800], it did not

"155. All enemies in regular war are divided into two general classes that is to say, into combatants and noncombatants, or unarmed citizens of the hostile government.

"The military commander of the legitimate government, in a war of rebellion, distinguishes between the loyal citizen in the revolted portion of the country and the disloyal citizen. The disloyal citizens may further be classified into those citizens known to sympathize with the rebellion without positively aiding it, and those who, without taking up arms, give positive aid and comfort to the rebellious enemy without being bodily forced thereto.

"156. Common justice and plain expediency require that the military commander protect the manifestly loyal citizens in revolted territories against the hardships of the war as much as the common misfortune of all war admits.

"The commander will throw the burden of the war, as much as lies within its power, on the disloyal citizens, of the revolted portion or province, subjecting them to a stricter police than the noncombatant enemies have to suffer in regular war; and if he deems it appropriate, or if his government demands of him that every citizen shall, by an oath of allegiance, or by some other manifest act, declare his fidelity to the legitimate government, he may expel, transfer, imprison, or fine the revolted citizens who refuse to pledge themselves anew as citizens obedient to the law and loyal to the government.

“Whether it is expedient to do so, and whether reliance can be placed upon such oaths, the commander or his government have the right to decide.

"157. Armed or unarmed resistance by citizens of the United States against the lawful movements of their troops is levying war against the United States, and is therefore treason."

Instructions for the Government of Armies of the United States in the
Field, General Orders, No. 100, April 24, 1863, War of the Rebellion,
Official Records, series 3, III. 163.

4. PRIVATE.

§ 1104.

"If one citizen has a right to go to war of his own authority, every citizen has the same. If every citizen has that right, then the nation (which is composed of all its citizens) has a right to go to war by the authority of its individual citizens. But this is not true, either on the general principles of society or by our Constitution, which gives that power to Congress alone, and not to the citizens individually. Then the first position was not true, and no citizen has a right to go to war of his own authority; and for what he does without right, he ought to be punished."

Mr. Jefferson, Sec. of State, to Mr. Morris, min. to France, Aug. 16, 1793, Am. State Papers, For. Rel. I. 167, 168; 4 Jefferson's Works, 37. Adopted by Mr. Webster, Sec. of State, report to President (Thrasher's case), Dec. 23, 1851, 6 Webster's Works, 527. (This report is not on record in the Department of State.)

"No hostilities of any kind, except in necessary self-defence, can lawfully be practiced by one individual of a nation, against an individual of any other nation at enmity with it, but in virtue of some public authority. War can alone be entered into by national authority: .. and each individual on both sides is engaged

in it as a member of the society to which he belongs, not from motives of personal malignity and ill will. . . . Even in the case of one enemy against another enemy, therefore, there is no colour of justification for any offensive hostile act, unless it be authorized by some act of the government giving the public constitutional sanction to it."

Mr. Justice Iredell, in Talbot r. Janson (1795), 3 Dall. 133, 160.

It is an offense against the law of nations for any persons, whether citizens or foreigners, to go into the territory of Spain with intent to recover their property by their own strength, or in any other manner than that permitted by its laws.

Lee, At. Gen., 1797, 1 Op. 68.

"While noticing the irregularities committed on the ocean by others, those on our own part should not be omitted nor left unprovided for. Complaints have been received that persons residing within the United States have taken on themselves to arm merchant vessels and to force a commerce into certain ports and countries in defiance of the laws of those countries. That individuals should undertake to wage private war, independently of the authority of their country, can not be permitted in a well-ordered society. Its tendency to produce aggression on the laws and rights of other nations and to endanger the peace of our own is so obvious that I doubt not you will adopt measures for restraining it effectually in future."

President Jefferson, annual message, Nov. 8, 1804, Richardson's Messages,
I. 370.

A citizen of the United States having intimated his intention to take guano from the Lobos Islands, the Department of State adverted to the fact that in 1842 the Peruvian Government issued two decrees prohibiting foreign vessels, on penalty of confiscation, from removing guano from any of the islands near the coast of Peru without a license from that Government, and said: "Under these circumstances, it is expected that the vessels which have proceeded thither under your auspices will not make use of the arms with which it

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amount, at any time, to open and public war. It is certain that the amicable relations of the two countries were much disturbed; it is certain that the United States authorized armed resistance to French captures, and the captures of French vessels of war found hovering on our coast; but it is certain, also, not only that there was no declaration of war, on either side, but that the United States, under all their provocations, never authorized general reprisals on French commerce. At the very moment when the gentleman says war raged between the United States and France, French citizens came into our courts, in their own names claimed restitution for property seized by American cruisers, and obtained decrees of restitution. They claimed as citizens of France, and obtained restitution in our courts as citizens of France. This act [May 28, 1798], it is true, authorized the use of force, under certain circumstances, and for certain objects, against French vessels. But there may be acts of authorized force; there may be assaults; there may be battles; there may be captures of ships and imprisonment of persons, and yet no general war. Cases of this kind may occur under that practice of retorsion which is justified, when adopted for just cause, by the laws and usages of nations, and which all the writers distinguish from general war. the same day in which this act passed, . . Congress passed another act, entitled 'An act authorizing the President of the United States to saise a provisional army;' and the first section declared, that the President should be authorized, in the event of a declaration of war against the United States, or of actual invasion of their territory, by a foreign power, or of imminent danger of such invasion,' to cause to be enlisted ten thousand men." Mr. Webster also called attention to the fact that by the act of February 20, 1800, war was still spoken of as a future contingency; and on May 11, 1800, further warlike preparations were stopped.

. On

Mr. Webster's speech on French spoliations, 4 Webster's Works, 163–165.
In accord with this view is Gray, admr., v. United States (1886), 21 Ct.
Cl. 340, 374. See supra, § 1056.

See, also, Lawrence's Wheaton (1863), 518.

3. CIVIL

§ 1103.

"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."

Wheaton, Dana's edition, Part IV. sec. 296, p. 374.

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See, in the same place, Dana's note on Belligerent powers exercised in civil war."

"149. Insurrection is the rising of people in arms against their government, or a portion of it, or against one or Insurrection-Civil more of its laws, or against an officer or officers of the government. It may be confined to mere armed resistance, or it may have greater ends in view.

war-Rebellion.

150. Civil war is war between two or more portions of a country or state, each contending for the mastery of the whole, and each claiming to be the legitimate government. The term is also sometimes applied to war of rebellion, when the rebellious provinces or portions of the state are contiguous to those containing the seat of government.

151. The term rebellion is applied to an insurrection of large extent, and is usually a war between the legitimate government of a country and portions of provinces of the same who seek to throw off their allegiance to it and set up a government of their own.

* 152. When humanity induces the adoption of the rules of regular war toward rebels, whether the adoption is partial or entire, it does in no way whatever imply a partial or complete acknowledgment of their government, if they have set up one, or of them, as an independent or sovereign power. Neutrals have no right to make the adoption of the rules of war by the assailed government toward rebels the ground of their own acknowledgment of the revolted people as an independent power.

153. Treating captured rebels as prisoners of war, exchanging them, concluding of cartels, capitulations, or other warlike agreements with them; addressing officers of a rebel army by the rank they may have in the same; accepting flags of truce; or, on the other hand, proclaiming martial law in their territory, or levying war taxes or forced loans, or doing any other act sanctioned or demanded by the law and usages of public war between sovereign belligerents, neither proves nor establishes an acknowledgment of the rebellious people, or of the government which they may have erected, as a public or Sovereign power. Nor does the adoption of the rules of war toward rebels imply an engagement with them extending beyond the limits. of these rules. It is victory in the field that ends the strife and settles the future relations between the contending parties.

154. Treating in the field the rebellious enemy according to the law and usages of war has never prevented the legitimate government from trying the leaders of the rebellion or chief rebels for high treason, and from treating them accordingly, unless they are included. in a general amnesty.

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