This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
"War has been well defined to be 'that state in which a nation prosecutes its right by force.' "1 It has also been defined as "a contention by force between nations."2 Other definitions of war between independent and recognized nations express the same general ideas in varying terms.3 Wars of this sort have been divided by some authorities into the solemn or perfect war,4 and the limited or imperfect war,5 in which hostile relations exist for special purposes but not for general purposes. The practical illustration of this sort of imperfect war is found in the relations between the United States and France in the early part of the nineteenth century. The nations were said for some purposes to be at war.6 and yet it was said that there was "no public general war, but limited war, in its nature similar to a prolonged series of reprisals."7 A more recent example of war in the limited sense has been found by some courts in Pershing's "invasion of Mexico.8 War of the imperfect type affects the contractual relations which exist between citizens of the respective belligerent powers when such war breaks out or which are entered into during such war, only to the extent to which the respective governments recognize their relations as war.
1 The Prize Cases, 07 U. S. (2 Black) 635, 17 L. cd. 459.
2 Bas v. Tingy, 4 U. S (4 Dall.) 37 1 L. cd. 731.
3"What is war? It is a contest,' says Bynkershoek, 'carried on between independent persons for the sake of asserting their rights.' Where society does not exist - where there is no such institution as that which we call government - there individuals, being strictly independent persons, may carry on war against each other. But whenever men are formed into a social body, war can not exist between individuals. The use of force among them is not war. but a trespass, cognizable by the municipal law. Bynk. War, p. 128. If war, then, be the act of the nation, whatever is done in the prosecution of it, must either expressly or implicitly be under the national authority. Whatever private benefits result from it must be from a national grant. 'War,' says Vattel (page 368), 'is that state in which a nation prosecutes its right by force'" United States v. "Active," 24 Fed. Cas. 755.
For a summary of earlier definitions, see Arce v. State (Tex. Crim. App.), 202 S. W. 051.
4 "It may, I believe, be safely laid down that every contention by force between two nations, in external matters, under the authority of their respective governments, is not only war, but public war. If it be declared in form, it is called solemn, and is of the perfect kind; because one whole nation is at war with another whole nation, and all the members of the nation declaring war, are authorized to com mit hostilities against all the members of the other, in every place, and under every circumstance. In such a war all the members act under a general authority, and all the rights and consequences of war attach to their condition." Bas v. Tingy, 4 U. S. (4 Dall.) 37, 1 L. ed. 731.
5 "But hostilities may subsist between two nations, more confined in its nature and extent, being limited as to places, persons and things; and this is more properly termed imperfect war, because not solemn, and because those who are authorized to commit hostilities, act under special authority, and can go no farther than to the extent of their commission. Still, however, ' 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. It is a war between the two nations, though all the members are not authorized to commit hostilities such as in a solemn war, where the government restrains the general power." Bas v. Tingy, 4 U. S. (4 Dall.) 37, 1 L. ed. 731.
6 Bas v. Tingy, 4 U. S. (4 Dall.) 37, 1 L. ed. 731.
7 Gray v. United States, 21 Ct. Cl. 340.
While at the outset of a civil war the parent state usually attempts to deny the existence of war and to treat the part of its community which has revolted as an organization of traitors, it is ordinarily forced to recognize the fact of their insurgency and ultimately of their belligerency if the revolt has sufficient strength and maintains itself for a sufficient period of time. A civil war, accordingly, is recognized as a war for general purposes, as long as that part of the nation which has revolted is able to maintain itself;9 and such a war has the same effect upon contracts as a war between independent nations.10 In addition thereto, contracts which are entered into for the purpose of carrying on such war on behalf of that part of the state which has revolted, may be regarded by the parent state as contracts in aid of treason if the revolt proves unsuccessful.11 The Civil War of the United States was recognized by the courts of the United States as a war of this sort;12 and to a far more limited degree the insurrection in Cuba against Spanish rule was recognized as at least a condition of insurgency.13
8 Arce v. State, (Tex. Crim. App), 202 S. W. 951.
9 "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. Insurrection against a government may or may not culminate in an organized rebellion, but a civil war always begins by insurrection against the lawful authority of the government. A civil war is never solemnly declared; it becomes such by its accidents - the number, power, and organization of the persons who originate and carry it on. When 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 acknowledges them as belligerents, and the contest a war. They claim to be in arms to establish their liberty and independence, in order to become a sovereign state, while the sovereign party treats them as insurgents and rebels, who owe allegiance, and who should be punished with death for their treason." The Prize Cases, 67 U. S. (2 Black) 635, 17 L. ed. 450.
10 "A civil war," says Vattel, "breaks the bands of society and government, or at least suspends their force and effect; it produces in the nation two independent parties, who consider each other as enemies, and acknowledge no common judge. Those two parties, therefore, must necessarily be considered as constituting, at least for a time, two separate bodies, two distinct societies. Having no common superior to judge between them, they stand in precisely the same predicament as two nations who engage in a contest and have recourse to arms." The Prize Cases, 67 U. S. (2 Black) 635, 17 L. ed. 450.
"Still further, it is undeniable that civil war brings with it all the consequences in this regard which attend upon and follow a state of foreign war. Certainly this is so when civil war is sectional. Equally with foreign war, it renders commercial intercourse unlawful between the contending parties, and it dissolves commercial partnerships." Matthews v. McStea, 91 U. S. 7, 23 L. ed. 188.