by scientific improvement of the instruments of war; while on the other hand, it has diminished the surface upon which war acts in the destruction of life and property, by exempting, to a large degree, non-combatants and private property; and, while increasing the rights and protec tion of neutrals, has practically increased, also, the stringency, if not the extent, of their obligations to refrain from aiding either party. The best authorities are now discussing the question whether the time has not come when civilized nations should disavow the old maxim that war makes every subject of one belligerent an enemy of every subject of the other; and recognize the principle that war is a duel between nations, in which the governments and the persons impressed with their military character, are alone to be deemed enemies. This change in the theory of the state of war, has already made great progress among publicists, and is now supported by eminent modern authorities, while it has received some practical sanction in the provisions of special treaties. It is submitted that it is both practicable and safe to make the modern doctrine the basis of a general Code. In accordance with these considerations the general principles which have been followed in the preparation of the Articles of this Book, have been, 1. That as between the military forces of the belligerents, hostilitiesare sanctioned without other limits than those already recognized by the laws of civilized warfare, as modified by recent general conventions such as those respecting small explosive balls, and the treatment of sick and wounded. One qualification should be added, namely: forbidding the use of false colors and signals, as an act of bad faith; 2. That nations, when they engage in war with each other, should confine their struggle to military measures; and so far as possible leave undisturbed all undefended persons and places, all peaceful relations, and modes of intercourse, and all property, public or private, which does not directly subserve the purposes of war; 3. That those nations which remain neutral, should not only refrain from active assistance, but should exert themselves to prevent their people from furnishing implements of warfare to either combatant. In accordance with the rule adopted in some recent treaties, and with usage in one or two cases, war material alone is declared contraband, and all other private property not engaged in illegal traffic, is protected from capture. In considering the application of the provisions of this Book, it should be remembered that its object is not to state all the rules of public law which are in force during war, but only those rules unknown in time of peace which war calls into application. By Article 7, in the beginning of Book First, it is declared that the First Book treats of the relations of nations and of their members to each other, except as they are modified by a state of war; and the Second treats of the modifications in these relations produced by a state of war. Therefore, the provisions for the protection of foreigners and their property which are contained in Book First, are not repeated here; as they will continue uninterrupted in war as in peace, ex : 1 cept so far as the provisions of this Book would suspend them during war. The notes, without attempting to refer to all the authorities, give a sufficient number to afford the reader a convenient clue to the discussions contained in the books concerning the various topics referred to, without burdening him with multiplied references. PART VII. THE COMMENCEMENT OF WAR. ARTICLE 703. Provisions of Book on Peace continue in force except as modified. 704. "War" defined. 705. Nations, &c., are the only parties. 706. Civil war. 707. Insurgents may be treated as belligerents. 708. Insurgents may be recognized by foreign nations. 709. Declaration of war. 710. Response unnecessary. 712. Negative reprisal. 713. Positive reprisal. 714. Positive reprisal treated as declaration of war. 715. Hostilities before declaration. 716. Positive reprisal in violation of provisions for preservation of peace. Provisions of Book on Peace continue in force except as modified. 703. The provisions of Book First of this Code continue in force, notwithstanding the existence of war, except so far as it is otherwise expressly provided therein, or as they are modified by the provisions of this Book. "War" defined. 704. The term "war," as used in this Code, designates a hostile contest at arms, between two or more nations,' or communities claiming sovereign rights.' Every such nation or community is termed a belligerent. 'Different definitions have been given by the writers, for different purposes. See a number of definitions collected by Fioré Nouveau Droit International, Ed. of Pradier Fodéré, v. 2, p. 239. He contends for a definition excluding unjustifiable war; but obviously the definition adopted in this Code must include every conflict which gives rise to the peculiar rights and duties of neutrals and belligerents. See also Triss' Law of Nations, pt. II., p. 43, where various definitions are discussed. It seems unnecessary to distinguish between ordinary public wars, and mixed, civil, or social wars (see Grotius, Jure Belli ac Pacis, liv. 1, ch. 3), any further than is done by Articles 705-708. 2 The parties belligerent in a public war are independent nations. But it is not necessary to constitute war that both parties should be acknowledged as independent nations or sovereign States. A war may exist where one of the belligerents claims sovereign rights as against the other. Prize Cases, 2 Black's U. S. Supr. Ct. Rep., 667. Revolutionary or insurrectionary wars, so far as necessary to be provided for in this Code, are the subject of Articles 705-708. Nations, &c., are the only parties. 705. War is a relation of nation to nation, or of community to community, and does not affect the relations of individuals with each other, except within the limits allowed by this Book. This is the general principle contended for by the best modern author⚫ities, and its recognition has been the source of the greatest ameliorations yet introduced into the laws of war. It used to be a familiar maxim of the books, that war makes all the subjects of one belligerent enemies of each and every subject of the other. Halleck, Intern. Law & Laws of War, p. 411, § 1. And the same rule was applied to strangers residing in the belligerent country, or coming to reside there, with knowledge of the existence of the war. Triss' Law of Nations, Part II., p. 82. In the case of a civil war those persons were to be regarded as enemies who, though subjects or citizens of the lawful government, were residents of the territory under the power or control of the party resisting that government. Miller v. United States, 11 Wallace's U. S. Supr. Ct. Rep., 268. The courts do not notice the friendly disposition of the individual, even in case of a rebellion. Woods v. Wilder, 43 New York Rep., 164. This legally imputed hostility is now so far mitigated by treaty provisions, and by ameliorations in the usages of war, and is so much opposed to the tendency of modern opinion, that it seems proper to recognize a different rule. It is believed that the rule stated in the text more truly represents the better opinion of civilized nations, and more nearly conforms to the practice of hostilities at the present day. Bluntschli (Droit International Codifié, §§ 531, 532), says that strictly speaking the belliger ent States are the enemies. The citizens are not enemies of the hostile States, nor of each other; though they may be treated as such to the extent to which they take part in hostilities. The chief significance of the maxim that in a state of war, civilians become enemies, has been in its application to contracts, and the confiscation of property. As to these subjects, see Articles 846, 835, subd. 5, and 906. Civil War. 706. Even though an insurrection in a nation interrupts the course of justice, so that the tribunals can not be kept open in the disaffected territory,' the insurgents are not entitled to belligerent rights, except so far as they are recognized as belligerents in accordance with article 708. Prize Cases, 2 Black's U. S. Supr. Ct. Rep., 667; Shortridge v. Mason, 2 Amer. Law Review, 95. Where the courts of justice are open, there is peace, in judgment of law. Milligan's Cases, 4 Wallace's U. S. Supr. Ct. Rep., 1. Insurgents may be treated as belligerents. 707. A nation in which an insurrection exists may, without renouncing its claims of jurisdiction over the insurgents, or recognizing them as alien enemies or as having an established government, treat them as belligerents, and claim from foreign nations the performance of neutral duties. This allows the nation at its option to invoke the principle that a civil war creates the same belligerent rights against neutrals, as a war between two separate and independent powers. Prize Cases, 2 Black's U.S. Supr. Ct. Rep., 635. And see The Mary Clinton, Blatchford's Prize Cases, (U. S. Dist. Ct.,) p. 556. Whether rebels cruising on the high seas against the property of the parent State, can, in any case, be considered as pirates, see Dana's Wheaton, Elements of Intern Law, § 124, p. 196, note 84. Insurgents may be recognized by foreign nations. 708. When an insurrection exists in a nation, and the insurgents have an established government capable of maintaining relations with other nations, any other nation may recognize them as belligerents, without re cognizing their independence, and may assume a position of neutrality. As to the right to recognize the independence of insurgents, see Article 962. Declaration of war. 709. No nation, uniting in this Code, shall commence a war against any nation whatever, without making public within its own territory, and as far as possible within the territory of the nation to be attacked, a declaration of war, assigning the reasons thereof, at least sixty days before committing the first act of hostility. A civil war is never solemnly declared; it becomes such by its accidents: the number, power and organization, of the persons who orig inate and carry it on. Where the party in rebellion occupy and hold in a hostile manner a certain portion of territory; have declared their independence; have cast off their allegiance; have organized armies; have commenced hostilities against their former sovereign, the world acknowl edges them as belligerents, and the contest as a war. Prize Cases, 2 Black's U. S. Supr. Ct. Rep., 635, per GRIER, J. By the above Article, it is proposed to require express declaration in the case of public or international war only. In the twelfth century, it was the established practice, formally to declare war, by a communication under the seal of the sovereign of one belligerent to the sovereign of the other. Twiss' Law of Nations, Part II., p. 57. The same author says, that there can be no doubt that in the fourteenth century it was the established law of Europe, that an offensive war could not be rightfully commenced, without a previous declaration of hostilities. Wildman, (International Law, v. 2. p. 8,) says, that since the peace of Versailles, in 1763, formal declarations of war of any kind seem to have been discontinued; and all the legitimate and necessary consequences of war flow at once from a state of public hostilities duly recognized and explicitly announced by a domestic manifesto or State paper. The importance of the question will be much diminished by the rule protecting private property at sea, as well as on land; but it is in the interest of peace, as well as in accordance with the tendency of public opinion, to see that the line between the state of peace and that of war is clearly marked; and, for this purpose, that a declaration in some form is required. The objection to requiring one is, that then acts of violence |