The war between Great Britain and the 'United States was a civil war until the dec laration of independence, when it became a public war between independent govern ments; Ware v. Hylton, 3 Dall. (U. S.) 199, 224, 1 L. Ed. 568. So the war of secession in this country was a civil war after the pres ident's proclamation of August 16, 1801. See Mayer v. Reed, 37 da. 482 ; 23 Am. L. Reg. 129; SECESSION. The general doctrines ap plicable to the subjects of belligerent nations have been held to be applicable to the hostile parties in that war ; Prize Cases, 2 Black (U. S.) 635, 17 L. Ed. 459. In a civil war the sovereign has belligerent as well as sovereign rights against his rebel subjects, and may ex ercise either at his discretion; Mrs. Alexan der's Cotton, 2 WW1. (U. S.) 419, 17 L. Ed. 915 ; Kershaw v. Kelsey, 100 Mass. 576, 97 Am. Dec. 124, 1 Am. Rep. 142.
The constitution of the United States (art. 1, sec. 8) provides that congress shall have power to declare war. See Mrs. Alexander's Cotton, 2 Wall. (U. S.) 404, 17 L. Ed. 915 ; Miller v. U. S., 11 Wall. (U. S.) 268, 20 L. Ed. 135 ; Tyler v. Defrees, 11 Wall. (U. S.) 331, 20 L. Ed. 161. An act of congress is neces sary to the commencement of a foreign war and is in itself a declaration ; 1 Kent 55. It fixes the date of the war ; Thayer, Const. .Cas. 2352. After congress has acted, it is not necessary to communicate the action to the enemy ; 1 Kent 55; but an Indian war may exist without act of congress ; Marks v. U. S., 28 Ct. Cl. 147. Actual hostilities may de termine the date of the commencement of a war; a formal proclamation is unnecessary ; The Buena Ventura, 87 Fed. 927.
Belligerent states not infrequently adopt the rule of reciprocity in the conduct of war, but this usage has not yet assumed the character of a positive law. Frequently an opposing belligerent applies the rule of reci procity and metes out to his adversary the same measure of justice that he receives from him. But it is said that where one bel ligerent exceeds his extreme rights and be comes barbarous and cruel in his conduct, the other should not, as a general thing, fol low and retort upon its subjects by treating them in like manner ; 2 Halleck, Int. Law 35.
Under the regulations of the United States, the army is not allowed to use the enemy's flag or uniform for purposes of deceit, but the navy may use a foreign flag to deceive the enemy if it is hauled down before a gun is tired ; Snow, Lect. Int. Law 82. See WEAPONS ; FLAG.
When war exists between two nations, every individual of the one is theoretically at war with every individual of the other ; though modern international law has at tempted, with some success, to confine the contest to the armies of the contesting.powers
and relieve non-combatants from loss and suffering as much as possible ; Snow, Lect. Int. Law 82.
War gives this government full right to take the persons and confiscate the property of the enemy wherever found in the United States, and while the humane policy of mod ern times may have mitigated this rigid rule, it cannot impair the right itself ; Brown v. U. S., 8 Cra. (U. S.) 110, 3 L. Ed. 504. The right to take enemy's property found in the United States requires an act of congress ; id., Story, J., dies. This rule applies to the property of a neutral within the enemy's lines ; Young v. U. S., 97 U. S. 60, 24 L. Ed. 992 ; but it was held in Mrs. Alexander's Cotton, 2 Wall. 419, 17 L. Ed. 915, that the right to take the prop erty of an enemy on land is substantially restricted "to special cases dictated by the necessary operations of the war ;" "the sei zure of private property of pacific persons for the sake of gain is excluded." See Briggs v. U. S., 143 U. S. 356, 12 Sup. Ct. 391, 36 L. Ed. 180.
A belligerent may, by express law or edict, confiscate the property or even the land of an alien enemy, within its territory or occupa tion; Union Ins. Co. v. U. S., 6 Wall. (U. S.) 759, 18 L. Ed. 879 ; Kershaw v. Kelsey, 100 Mass. 574, 97 Am. Dec. 124, 1 Am. Rep. 142.
The right of a belligerent to confiscate debts due by its subjects to enemy's subjects is usually recognized, but seldom exercised ; 1 Kent *62 ; and this is more especially true in relation to the public debt of a belligerent state to an enemy's subject ; 1 Halleck, Int. L. 535. The seizure by the United States of enemy's property on land cannot be authoriz ed, by the law of nations ; it can be upheld only by an act of congress; U. S. v. Shares of Capital Stock, 5 Blotch. 231, Fed. Cas. No. 15,961. Vessels and cargo belonging to trad ing concerns in the enemy's country, or cor porations organized under its laws, are sub ject to capture, regardless of the domicil of the partners or stockholders ; The Buena Ventura, 87 Fed. 927.
A belligerent has a right to seize and re tain as prisoners of war all subjects of an enemy state found within its territory; but this right has usually been modified by treaty, usage, or municipal regulations, and is sel dom enforced ; 1 Halleck, Int. L., Baker's ed. 530.