31 Am. J. Int'l L. 642 (1937)
English and American Courts and the Definition of War

handle is hein.journals/ajil31 and id is 646 raw text is: ENGLISH AND AMERICAN COURTS AND THE DEFINITION
OF WAR
By WImLw J. RONAw
New York University
In view of the increased interest in the problem of finding a legal definition
for war or the state of war it seems worth while to consider briefly the
hitherto rather neglected contributions to the subject by American and English
courts. The problem of defining war has been effectively treated from
several other viewpoints,1 but these English and American cases are worth
examination for the further light they may shed on the fundamental questions
involved. The fact that these decisions were in part prompted by the neces-
sity of interpreting the phrase war or state of war in domestic statutes
and that in all cases it is merely the voice of a national court speaking, need
not detract from the value of the survey. The basis upon which judgment
was rendered in most cases was (or at least was asserted to be) that of the
law of nations, and, in the words of Chief Justice Marshall, the decisions of
national courts show how the law of nations, in a given case, is understood
in that country. 2
To define war or the state of war it is not sufficient merely to describe
its general characteristics, as many of the writers have done. It is essential
that the time of its commencement and the time of its termination be ascer-
tained. With regard to the latter, the problem is not so difficult, since there
is a fairly regularly followed procedure. War usually ends by treaty if both
parties survive, or by the determination of the fact of complete subjugation
where one party disappears.4 The chief problem, then, resolves into an
attempt to discover when war begins.
This has been made difficult by the wide acceptance of the doctrine that
there may be numerous acts of force which fall short of creating a state of war,
while the notion that such acts as armed intervention and pacific blockade
may constitute an intermediate legal status makes for further confusion.
The English and American courts have for the most part maintained the
position that international law recognizes only two alternative relationships
I See A. D. McNair, The Legal Meaning of War and the Relation of War to Reprisals,
Transactions of the Grotius Society, Vol. XI (1926), p. 29; Clyde Eagleton, The Attempt
to Define War, International Conciliation, No. 291 (June, 1933); A. E. Hindmarsh, Force
in Peace (Cambridge, Mass., 1933); Thomas Baty, Abuse of Terms: 'Recognition,' 'War,'
this JoumNAL, Vol. 30 (1936), p. 377; G. G. Wilson, The Use of Force and War, ibid., Vol.
26 (1932), p. 328; Quincy Wright, When Does War Exist? ibid., p. 362.
2 Thirty Hogsheads of Sugar v. Boyle, 9 Cranch 191 (1815).
3 For a compilation of the definitions given by some of the leading writers, see Eagleton,
op. cit., and Arnold Cuten, La Notion de Guerre permise (Paris, 1931), Chap. I.
4 See Coleman Phillipson, The Termination of War and Treaties of Peace (London, 1916).
642

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