In reply to Mr. Webster's statement of August 8, 1842, that "in future in every regularly documented American merchant ship the crew who navigate it will find their protection in the flag which is over them," Lord Aberdeen wrote on August 9, that "I have much reason to hope that a satisfactory arrangement respecting it (the impressment question) may be made, so as to set at rest all apprehension and anxiety." 2 Curtis' Life of Webster, 124. As to impressment of seaman, see 2 John Adams' Works, 226, 528; 3 ibid., 8 ibid., 450, 451, 453, 455, 656; 9 ibid., 312, 330; 10 ibid., 207. 503; For a table of impressments see 4 Am. St. Pap. (For. Rel.), 56 f. As to impress- For an account of the case of the United States sloop-of-war Baltimore, see 3 On impressment as cause of the war of 1812, see speech of T. Pickering, 4 Life Several papers which bear, in the correspondence of the day, on impressment, but which primarily touch on visitation, are found supra, § 327. As is stated in a prior section (supra, § 328), it was conceded in 1862, by the Quarterly Review (Conservative) and the Edinburgh Review (Liberal), that the right of impressment was no longer claimed by Great Britain. 228 CHAPTER XVII. WAR. I. CONDITIONS AND DECLARATION OF. (1) May be limited and conditioned, § 333. (2) Declaration may be formally necessary, § 334. II. EFFECT OF, AS TO CIVIL RIGHTS. (1) Abrogates treaties, § 336. (2) Breaks up business and suspends contracts, § 337. (3) But not truces, § 337a. III. APPLICATION OF, TO ENEMY'S PROPERTY. (1) Private property on land not usually subject to enemy's seizure, § 338. (2) Contributions may be imposed, § 339. (3) State movable property may be seized, § 340. (4) So of property in enemy's territorial waters, § 341. (5) Liability to seizure of enemy's private property on high seas under neutral flag, § 342. (6) Liability of neutral property under enemy's flag, § 343. (7) Exceptions as to rule of seizure of enemy's property at sea, § 344. IV. RULES OF CIVILIZED WARFARE TO BE OBSERVED. (1) Spies and their treatment, § 347. (b) Arbuthnot and Ambrister, § 348a. (d) Dartmoor prisoners, § 348c. (3) Wanton destruction prohibited, § 349. V. WHO ARE ENTITLED TO BELLIGERENT RIGHTS. (1) In foreign war authorization from sovereign generally necessary, § 350. (2) Insurgents are belligerents when proceeded against by open war, § 351. VI. WHEN ENEMY'S CHARACTER IS IMPUTABLE TO NEUTRALS. (1) When residing in enemy's jurisdiction, § 352. (2) When leaving property at enemy's disposal, § 353. VII. ADMINISTRATION BY CONQUEROR. (1) As to courts, § 354: (2) As to executive, § 355. VIII. ENDING OF WAR. (1) By cessation of hostilities, § 356. (2) By treaty of peace, § 357. 1. CONDITIONS AND DECLARATION OF. (1) MAY BE LIMITED AND CONDITIONED. § 333. War may be conditioned on refusal of an ultimatum. See Whart. Com. Am. Law, § 211. There was no formal declaration on the part of the United States in 1798-'99 of war with France, yet a quasi war, as it was called, existed in 1799 between the United States and France. (Supra, § 248, where this question is examined in relation to the French spoliations before 1799.) In February, 1799, the French frigate L'Insurgente, of forty guns, having previously captured the United States schooner Retaliation, was herself captured by the United States frigate Constellation, of thirty guns, commanded by Commodore Truxton, who subsequently had an engagement with another French frigate of fifty guns, who struck her colors, but subsequently, in the darkness of the night, escaped with a loss of one hundred and sixty men, killed and wounded. As will here. after be seen, there was no declaration of war on the part of the United States, but captures were made and prisoners exchanged. Infra, § 335. See also supra, § 248. As to capturing and exchanging French seamen in quasi war, see 8 John Adams' For an account of the relations of the United States and France in 1796-'97, see 3 Life of Pickering, 345 ff.; for an account of the mission of Pinckney, Gerry, and Marshall, see ibid., 367ff.; for an account of the mission of Ellsworth, Murray, and Davie, see ibid., 392 ff.; ibid., 436 ff.; and see supra, §§ 81, 83, 85. A "quasi war" also existed on the Mississippi Valley with Spain in 1793. 1 Am. St. Pap. (For. Rel.), 454. "A perfect war is where one whole nation is at war with another nation, and all the members of both nations are authorized to commit hostilities against all the members of the other, in every case and under every circumstance permitted by the general laws of war. An imperfect war is limited as to places, persons, and things [to which the editor adds:] Such were the limited hostilities authorized by the United States against France in 1798. (Lawrence's Wheaton, 518.)" Davis, J., Ct. Cls., opinion on French spoliations, May 17, 1886. On December 6, 1805, President Jefferson, when discussing Spanish depredations on our territory, said: "Considering that Congress alone is constitutionally invested with the power of changing our conditions from peace to war, I have thought it my duty to await their authority for using force in any degree that could be avoided. I hare barely instructed the officers stationed in the neighborhood of the aggressions to protect our citizens from violence, to patrol within the borders actually de livered to us, and not to go out of them but when necessary to repel an inroad, or to rescue a citizen or his property." See 2 Am. St. Pap. (For. Rel.), 613. President Madison, in a special message of June 1, 1812, after enumerating the injuries suffered from British spoliation, said: "We behold, in fine, on the side of Great Britain, a state of war against the United States; and on the side of the United States a state of peace towards Great Britain." See 3 Am. St. Pap. (For. Rel.), 407. Hostilities between nations may be limited as to places, persons, and things. Such hostilities are termed imperfect war, because not solemn, ♦ and because those who are authorized to commit hostilities act under special authority, and can go no further than warranted by their commission. Still it is public war, because it is an external contention by force between some of the members of the two nations authorized by the legitimate powers. Bas r. Tingy, 4 Dall., 37, 40.. See supra, § 248. Congress can declare a general war, or may wage a limited war; limited in place, in objects, or in time. If a general war is declared, its extent and operations are only restricted and regulated by the jus belli, forming a part of the law of nations; but if a partial war is waged, its extent and operation depend on our municipal law. Bas v. Tingy, 4 Dall., 37. 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. Talbot v. Seeman, 1 Cranch, 1. A civil war exists and may be prosecuted on the same footing as if those opposing the Government were foreign invaders whenever the regular course of justice is interrupted by revolt, rebellion, or insurrection, so that the courts cannot be kept open. Civil war begins by insurrection against the lawful authority of the Government, and is never solemnly declared. When the party in rebellion occupy and hold in a hostile manner a certain portion of territory; have declared their independence and cast off their allegiance; have organized armies, and commenced hostilities against their former sovereign, the world acknowledges them as belligerents, and the contest a war. The Prize Cases, 2 Black, 635. As to declaration of war, see infra, § 334. (2) DECLARATION MAY BE FORMALLY NECESSARY. § 334. "In the first place, I have to say that the war-making power in this Government rests entirely with Congress; and that the President can authorize belligerent operations only in the cases expressly provided for by the Constitution and the laws. By these no power is given to the Executive to oppose an attack by one independent nation on the possessions of another. We are bound to regard both France and Hawaii as independent states, and equally independent, and though the general policy of the Government might lead it to take part with either in a controversy with the other, still, if this interference be an act of hostile force, it is not within the constitutional power of the Pres- • ident; and still less is it within the power of any subordinate agent of government, civil or military." Mr. Webster, Sec. of State, to Mr. Severance, July 14, 1851. MSS. Inst., Hawaii. "This proposition, looking to a participation by the United States in the existing hostilities against China, makes it proper to remind your lordship that, under the Constitution of the United States, the execu tive branch of this Government is not the war-making power. The exercise of that great attribute of sovereignty is vested in Congress, and the President has no authority to order aggressive hostilities to be undertaken. “Our naval officers have the right-it is their duty, indeed-to em. ploy the forces under their command, not only in self-defense, but for the protection of the persons and property of our citizens when exposed to acts of lawless outrage, and this they have done both in China and elsewhere, and will do again when necessary. But military expeditions into the Chinese territory cannot be undertaken without the authority of the national legislature." Mr. Cass, Sec. of State, to Lord Napier, Apr. 10, 1857. MSS. Notes, Gr. Brit. "I deem it my duty once more earnestly to recommend to Congress the passage of a law authorizing the President to employ the naval force at his command for the purpose of protecting the lives and property of American citizens passing in transit across the Panama, Nicaragua, and Tehuantepec routes against sudden and lawless outbreaks and depredations. I shall not repeat the arguments employed in former messages in support of this measure. Suffice it to say that the lives of many of our people, and the security of vast amounts of treasure passing and repassing over one or more of these routes between the Atlantic and Pacific, may be deeply involved in the action of Congress on this subject. (As to Isthmus, see supra, §§ 287 ff.) "I would also again recommend to Congress that authority be given to the President to employ the naval force to protect American mer. |