English and American Courts and the Definition of War

Abstract

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, 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 necessity 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.”