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.
In determining the existence and kind of war in which a given state is claimed to be engaged, the courts of that state are bound by the acts of the political departments of the government upon whom the power of making war and of recognizing the existence of war is conferred by the constitution of that state.1 For general purposes the Civil War was accordingly held to begin with the presidential proclamation of a blockade of the southern ports,2 rather than with the actual outbreak of hostilities; and it was held to end with the President's proclamation of the restoration of peace,3 rather than with the actual cessation of hostilities.4 Tie courts of a state which adhered to the Confederacy refuse to take judicial notice of the fact that the Civil War existed on the 16th of April, 1861, although the bombardment of Fort Sumter had begun before that time.5 For purposes of determining whether a vessel captured on the high seas was lawful prize, retroactive effect was given to a declaration of war which by its terms was retroactive,6 although a liberal construction was given to all ambiguous or doubtful terms of such declaration and proclamation.7
11 See Sec. 862.
12The Prize Cases, 67 U. S. (2 Black) 635, 17 L. ed. 459; Matthews v. McStea, 91 U. S. 7, 23 L. ed. 188.
13 The Three Friends, 166 U. S. 1, 41 L. ed. 897.
1 The Pedro, 175 U. S. 354, 44 L. ed. 195; The Buena Ventura, 175 U. S. 384, 44 L. ed. 206.
"War in its legal sense has been aptly defined to be the state of nations among whom there is an interruption of all specific relations, and a general contestation of arms authorised by the sovereign.' It is true, it may and has frequently in latter times been commenced and carried on without either a notice or a declaration. But still, there can be no war by its government, of which the court can take judicial knowledge, until there has been some act or declaration creating or recognizing its existence by that department of the government clothed with the war-making power. In the Confederate States, congress was invested with this power. Until it acted, however great the provocation, or imminent its probability, the courts could not say that amicable relations might not be restored without actual war. If congress, when it acts, should declare the war to have existed anterior to its declaration, the courts will follow the declaration; and, if the question should be subsequently brought before them, the courts will follow the declaration, and take judicial notice of its existence from the time thus fixed. But for them to attempt to declare its existence as a matter of legal knowledge, before any action has been taken by the war-making power, would be a most flagrant violation of duty. This was not done by the congress-of the Confederate states until subsequently to the time when, it is urged, the district court should have said, as a matter of judicial knowledge, that the war had commenced." Bishop v. Jones, 28 Tex. 294.
2 The Prize Cases, 67 U. S. (2 Black) 635, 17 L. ed. 459; Brown v. Hiatts, 82 U. S. (15 Wall.) 177, 21 L. ed. 128.